Notre Dame Law Review
Volume 92 | Issue 3
Article 4
1-2017
Capital Punishment of Unintentional Felony
Murder
Guyora Binder
SUNY Buffalo Law School
Brenner Fissell
Georgetown University Law Center
Robert Weisberg
Stanford Law School
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Recommended Citation
92 Notre Dame L. Rev 1141 (2017)
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CAPITAL PUNISHMENT OF UNINTENTIONAL
FELONY MURDER
Guyora Binder, Brenner Fissell & Robert Weisberg*
ABSTRACT
Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment.
This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s
decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital
punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference
that these cases permit execution of those who cause death without any culpability towards death.
This Article shows that this mechanical reading of precedent is mistaken, because the underlying
justifications of Eighth Amendment jurisprudence require a rational selection for death of only
the most deserving and deterrable offenders, and this in turn requires an assessment of culpability. We argue that the Supreme Court should address this open question in Eighth Amendment
law and that it should correct the lower courts by imposing a uniform requirement of at least
recklessness with respect to death for capital punishment of felony murder.
INTRODUCTION
That a defendant could be executed for causing death inadvertently
might seem absurd. Nevertheless, the great majority of American courts to
have considered the question have concluded that the Eighth Amendment of
the U.S. Constitution permits such executions. In so doing, they have interpreted Supreme Court doctrine to allow capital punishment of any person
who causes death during the commission of a felony, regardless of that person’s mental state with respect to the resultant death. Under this reading of
precedent, the following defendants are eligible for the death penalty: the
driver of a getaway car who kills a jaywalker, the burglar who startles an elderly homeowner and causes a fatal heart attack, and the robber who unknowingly punches a hemophiliac.
© 2017 Guyora Binder, Brenner Fissell & Robert Weisberg. Individuals and nonprofit
institutions may reproduce and distribute copies of this Article in any format at or below
cost, for educational purposes, so long as each copy identifies the authors, provides a
citation to the Notre Dame Law Review, and includes this provision in the copyright notice.
* Guyora Binder is a SUNY Distinguished Professor and the Vice Dean for Research
and Faculty Development at SUNY Buffalo Law School; Brenner Fissell is an Affiliated
Scholar at Georgetown University Law Center; Robert Weisberg is the Edwin E.
Huddleson, Jr. Professor of Law at Stanford Law School and the Faculty Co-Director of the
Stanford Criminal Justice Center. We thank Kristian Klepes for research assistance.
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Such counterintuitive results become conceivable when eligibility for the
death penalty is untethered from the defendant’s culpability. This disconnect results from an overly mechanical interpretation of the Supreme Court’s
two key cases applying the Eighth Amendment to the felony murder context:
Enmund v. Florida1 and Tison v. Arizona.2 Although these cases have been
read to permit execution of nonculpable killers, the holdings of both decisions impose a high level of culpability for execution of accomplices in felony
murder, on the ground that death should be reserved for the most culpable
offenders. In overturning the death sentence of an accomplice in a fatal
felony, the Enmund majority stated that a participant in a fatal felony is ineligible for capital punishment if he “does not himself kill, attempt to kill, or
intend that a killing take place or that lethal force will be employed.”3 In
upholding the death sentences of two accomplices in a fatal felony, the Tison
majority permitted capital punishment of felons “whose participation is
major and whose mental state is one of reckless indifference to the value of
human life.”4
Thus, subsequent readings of Enmund and Tison that permit the execution of actual killers regardless of culpability are largely based on what they
did not say about a question that was not before them. To be sure, the
Enmund majority did not say that those who “kill” are eligible only if they
intend death, but neither did it say they are eligible regardless of their
mental state. The Tison majority concluded that Enmund “held” that capital
punishment could be imposed on “the felony murderer who actually killed,”5
but only “when the circumstances warranted.”6 Because both cases concerned accomplices of intentional killers, neither Court specified whether
those who “killed” included all who caused death, by any means, and with any
mental state. Yet most lower courts have assumed that anyone causing death
in a predicate felony is death-eligible, regardless of any culpability.
Omitting consideration of a culpable mental state is at odds with a central background principle of Eighth Amendment law: that we may only execute people to advance deterrence and retribution and that neither can be
furthered if the person does not act with culpability. Culpability is the essential inquiry when narrowing the class of murderers to those who are most
deserving of death, yet a mechanical reading of the Enmund-Tison test seems
to allow for execution without it. This is the tension—familiar to any lawyer—between the mechanical application of a legal rule and fidelity to the
rule’s animating justifications.
In this Article, we both diagnose this problem (previously unremarked
by legal scholarship) and attempt to solve it. First, we summarize the operation of felony murder rules and the considerations that might justify severe
1 458 U.S. 782 (1982).
2 481 U.S. 137 (1987).
3 Enmund, 458 U.S. at 797.
4 Tison, 481 U.S. at 152.
5 Id. at 150.
6 Id.
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penalties for felony murder. Next, we examine the further problem of justifying capital punishment of felony murder as proportionate under the
Eighth Amendment. At this point, the essential conundrum becomes apparent—the Eighth Amendment appears to require substantial culpability for
capital punishment, yet Enmund and Tison appear to require culpability only
for some capital murders. We then discuss two ways to read these cases. One
possibility is to read them mechanically, permitting execution of one who
causes death inadvertently in committing predicate felonies. Another is to
understand that the conflict between this result and Eighth Amendment
principles invoked in these very cases invites a more reflective approach.
This more reflective interpretation would acknowledge the inadvertent
actual killer as an open question, to which Eighth Amendment principles
remain to be applied.
After presenting this dilemma, we review the application of Enmund and
Tison in the lower courts, showing how the reflective interpretation we recommend was soon displaced by the mechanical interpretation that now
prevails. In the years immediately after Enmund was decided, a number of
courts assumed that the principles invoked in that case required an assessment of the culpability of killers as well as their accomplices. Today, however, rather than considering how Eighth Amendment principles apply to
capital punishment of inadvertent causation of death, most courts simply presume actual killers to be death-eligible, citing Enmund and Tison.
The mechanical interpretation of these cases has taken three forms.
Some courts read these cases as explicitly holding that the Eighth Amendment permits execution of inadvertent killers.7 This unjustifiably broadens
the holdings of these cases, which left open the question of the culpability
required for execution of actual killers.
Other courts read the holdings of these cases more narrowly, as not
applying to actual killers. Yet they also ignore the Eighth Amendment principles justifying these holdings. In treating Enmund and Tison as inapplicable
to killers, these courts treat the Eighth Amendment itself as inapplicable.8
A third group acknowledges that execution of inadvertent killers may
offend Eighth Amendment principles, but reasons that discretionary decisionmaking will generally prevent such executions.9 Indeed, we will see that
most death sentences upheld on the ground that felony murderers are deatheligible regardless of culpability could also have been justified on the ground
that the defendant killed recklessly. Yet the rarity of death sentences for
inadvertent killing only reinforces the claim that such sentences are
disproportionate.10
7 See infra Section IV.B.
8 See infra Section IV.C.
9 See infra Section IV.D.
10 See infra text accompanying note 228; see also Section IV.E. That such sentences are
rarely imposed supports arguments that they would violate “evolving standards of
decency,” Atkins v. Virginia, 536 U.S. 304, 321 (2002), and would be arbitrary in the sense
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Having shown the dominance of the mechanical interpretation, we next
show why it is wrong—not because it offends our moral views, but because it
ignores the doctrinal pronouncements of the Supreme Court. The Court’s
own decisions have required that capital punishment serve retribution and
deterrence by punishing culpable conduct, and have reserved death for the
worst crimes and the most culpable criminals. These decisions authorize
lower courts to condition capital punishment on a culpable mental state of at
least reckless indifference to human life for all defendants convicted of felony murder, including actual killers.11 Yet, a better solution is for the
Supreme Court to finally answer the question left open in Enmund and Tison,
by making such a requirement explicit.
Why should the Supreme Court bother to bar capital sentences for inadvertent killers if, as we concede, such sentences are rarely imposed and even
more rarely executed? There are two reasons. First, because the threat of
disproportionate capital punishment can force a plea to a noncapital charge.
Second, because even one disproportionate execution is one too many.
Eighth Amendment violations need not be frequent to be worth correcting
and preventing. Executions are—by design—rare.12 Disproportionate execution is an important problem, not because it is a big problem, but because
it is a matter of life and death.
of being “wanton” and “freakish,” Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J.,
concurring).
11 At this point we say “at least recklessness” to distinguish two differing levels of recklessness. What we might call “simple recklessness” is that defined in Model Penal Code
§ 2.02: a person is reckless when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and
degree that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him, its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the actor’s
situation.
MODEL PENAL CODE § 2.02(2)(c) (AM. LAW INST. 1985). In regard to homicide, that level
of recklessness establishes involuntary manslaughter, see MODEL PENAL CODE § 210.1 (AM.
LAW INST. 1980), but a nonpurposeful killing can establish murder under MPC § 210.2 if
the killer acted “recklessly under circumstances manifesting extreme indifference to the
value of human life,” id. § 210.2. What thus can be called “gross recklessness” presumably
means that either the degree of risk, the degree of conscious adversion to risk, or the lack
of justification (i.e., the disutility of the actor’s motive) are more severe than what suffices
for simple recklessness. The higher recklessness required for murder is most often conditioned on either the exposure of multiple potential victims to risk, or a particularly antisocial motivation for imposing risk. We will argue that a plausible reading of the Eighth
Amendment cases would call for a minimal constitutional test of some version of gross
recklessness; but insofar as felony murder is conditioned on a felonious (and so antisocial)
end, a constitutional requirement of simple recklessness towards death arguably suffices to
condition death-eligibility on one interpretation of gross recklessness.
12 See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 438 (2008) (“In reaching our conclusion [barring capital punishment of child rape] we find significant the number of executions that would be allowed under respondent’s approach. The crime of child rape,
considering its reported incidents, occurs more often than first-degree murder.”).
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I.
FELONY MURDER LIABILITY
AND
PROPORTIONALITY
Eighth Amendment law justifies capital punishment, and its imposition
in particular cases, on the basis of two purposes only: retribution and deterrence.13 It limits capitally punishable offenses against persons to murder,
deeming no other crime sufficiently culpable or harmful to merit this
extreme penalty.14 Finally, it conditions death on proof of at least one circumstance distinguishing the offense as worse than other murders.15
Accordingly, determining when Eighth Amendment principles justify
capital punishment of felony murder requires understanding what felony
murder involves and how it compares with other forms of murder.
Felony murder rules impose murder liability on those who cause death
(usually foreseeably) in the commission or attempt of certain felonies. These
felonies are usually either enumerated by statute or limited to those committed in a way foreseeably dangerous to human life.16 Most enumerated predicate felonies inherently involve violence or danger to life—robbery, rape,
arson, kidnapping, and escape are among the most common.17 In death
penalty jurisdictions, death-eligible felony murders are usually predicated on
enumerated felonies.18 Felony murder liability often does not require proof
of a culpable mental state with respect to the victim’s death, although
requirements of foreseeable causation and dangerousness to life effectively
require negligent disregard of danger to life.19
In addition to imposing liability on those causing death, a felony murder
rule may extend liability to other participants in the felony who meet certain
criteria. In most felony murder jurisdictions, accomplices in a fatal felony are
also accomplices in felony murder if a co-felon caused death by conduct
undertaken in furtherance of and foreseeable as a result of the felony.20 By
conditioning complicity in felony murder on the foreseeability of death as a
result of the felony, such rules require of accomplies the same negligent disregard of the danger of death usually required for the killer’s causal responsibility. In a minority of jurisdictions, no distinction is drawn between felons
13 Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion).
14 Kennedy, 554 U.S. at 420; Coker v. Georgia, 433 U.S. 584, 598 (1977) (plurality opinion); see JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 321–25 (1907) (discussing harm and culpability as the components of desert); David
Crump & Susan Waite Crump, In Defense of the Felony Murder Doctrine, 8 HARV. J.L. & PUB.
POL’Y 359, 367–69 (1985) (same).
15 Zant v. Stephens, 462 U.S. 862, 877 (1983); Roberts v. Louisiana, 428 U.S. 325
(1976) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 301 (1976) (plurality
opinion).
16 Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. REV. 403, 415 (2011).
17 Although one prevalent predicate felony—burglary—usually involves very little danger to life. MODEL PENAL CODE § 210.2, at 38 (AM. LAW INST. 1980).
18 See generally David McCord, Should Commission of a Contemporaneous Arson, Burglary,
Kidnapping, Rape, or Robbery Be Sufficient to Make a Murderer Eligible for a Death Sentence?—An
Empirical and Normative Analysis, 49 SANTA CLARA L. REV. 1 (2009).
19 See Binder, supra note 16, at 484–87.
20 Id. at 484.
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who cause death and their co-felons: all participants in a predicate felony that
causes death (again, usually foreseeably) are liable as principals in felony
murder.21
While felony murder requires a death and an attempted or completed
felony, it is generally considered a homicide offense rather than an aggravated grade of the predicate felony. Felony murder is grouped with other
forms of murder in criminal codes.22 Since killing during an attempted felony suffices for felony murder liability, felony murder does not require all
the elements of the completed felony. Since the felony does not require
death, it does not require all the elements of felony murder. This means that
under the prevailing test for double jeopardy, a felony murder conviction
need not bar conviction for the completed felony.23 On such reasoning,
about half the felony murder jurisdictions have determined that the predicate felony can be punished in addition to the felony murder.24 If the harm
ascribed to felony murder is death only, it does the same harm as any other
homicide.25 If instead, we conceive felony murder as a compound crime,
combining a homicide with a predicate felony or attempt, felony murder
involves the additional harm of the completed or attempted felony.26
21 Id. at 484–86.
22 See, e.g., N.Y. PENAL LAW § 125.27 (McKinney 2013).
23 Blockburger v. United States, 284 U.S. 299 (1932).
24 See Todd v. State, 917 P.2d 674, 683 (Alaska 1996); State v. Siddle, 47 P.3d 1150
(Ariz. Ct. App. 2002); People v. Holt, 937 P.2d 213, 260–61 (Cal. 1997); State v. Rose, 33
A.3d 765, 777 (Conn. App. Ct. 2011); Whalen v. State, 434 A.2d 1346, 1371 (Del. 1981);
Brinson v. State, 18 So. 3d 1075, 1078 (Fla. Dist. Ct. App. 2009); Sivak v. State, 731 P.2d
192, 206, 208 (Idaho 1986); State v. Rhode, 503 N.W.2d 27, 40–41 (Iowa Ct. App. 1993);
State v. Waller, 328 P.3d 1111, 1126 (Kan. 2014); State v. Reardon, 486 A.2d 112, 121 (Me.
1984); People v. Ream, 750 N.W.2d 536, 547 (Mich. 2008); Walker v. State, 394 N.W.2d
192, 200 (Minn. Ct. App. 1986); State v. Barker, 410 S.W.3d 225, 236 (Mo. Ct. App. 2013);
State v. Turner, 877 P.2d 978, 983 (Mont. 1994); Talancon v. State, 721 P.2d 764, 768 (Nev.
1986); People v. Lucas, 481 N.Y.S.2d 789, 792 (N.Y. App. Div. 1984); State v. McClary, 679
N.W.2d 455, 464 (N.D. 2004); State v. Campbell, 738 N.E.2d 1178, 1205 (Ohio 2000); Commonwealth v. Harper, 516 A.2d 319, 320 (Pa. 1986) (per curiam); State v. Garza, 854
N.W.2d 833, 841–42 (S.D. 2014); State v. Godsey, 60 S.W.3d 759, 777–78 (Tenn. 2001);
State v. McCovey, 803 P.2d 1234, 1239 (Utah 1990); Spain v. Commonwealth, 373 S.E.2d
728, 731–32 (Va. Ct. App. 1988).
25 See JOHN KAPLAN, ROBERT WEISBERG & GUYORA BINDER, CRIMINAL LAW: CASES AND
MATERIALS 472–73 (6th ed. 2008).
26 About half of felony murder jurisdictions to have considered the issue bar the punishment of both the predicate felony and the felony murder as double punishment. See
Washington v. State, No. CR-13-1369, 2015 WL 6443149, at *4–5 (Ala. Crim. App. Oct. 23,
2015); Boulies v. People, 770 P.2d 1274, 1281 (Colo. 1989) (en banc); Sumrall v. State, 442
S.E.2d 246, 247 (Ga. 1994); People v. Gillespie, 23 N.E.3d 641, 645–49 (Ill. App. Ct. 2014);
Stewart v. State, 945 N.E.2d 1277, 1285 (Ind. Ct. App. 2011); State v. Staden, 154 So. 3d
579, 582–83 (La. Ct. App. 2014); Newton v. State, 373 A.2d 262, 266, 269 (Md. 1977);
Commonwealth v. Wilson, 407 N.E.2d 1229, 1250 (Mass. 1980); Williams v. State, 94 So. 3d
324, 329 (Miss. Ct. App. 2011); State v. McHenry, 550 N.W.2d 364, 370 (Neb. 1996); State
v. Arriagas, 487 A.2d 1290, 1292 (N.J. Super. Ct. App. Div. 1985); State v. Best, 674 S.E.2d
467, 474 (N.C. Ct. App. 2009); Perry v. State, 764 P.2d 892, 898 (Okla. Crim. App. 1988);
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Today, jurisdictions imposing felony murder liability usually define murder as also including causing death with intent to kill or with gross recklessness towards a risk of death.27 Thus, a felony murder rule extends liability
beyond traditional murder to those who cause death in the pursuit of a felony and their accomplices, without one of these mental states. Arguably,
then, it involves the same harm as other murder (death), but less culpability
with respect to that harm (negligence rather than gross recklessness or
intent). Nevertheless, it imposes a similarly severe penalty.
How can this severe penalty be justified? Felony murder liability has
many critics who see murder liability as unjustifiable without intent or gross
recklessness with respect to death.28 Some critics have gone so far as to claim
that ordinary (noncapital) felony murder liability is unconstitutionally disproportionate. For example, in an article dating from the era of the Enmund
and Tison decisions, Nelson Roth and Scott Sundby characterized felony
murder as a form of strict liability and pointed to two lines of cases implying
that strict liability could not be imposed for a serious crime.29 Decisions
reading mental elements into federal statutory offense definitions argued
that proof of culpability should be required for severely punished crimes, to
avoid possible violation of due process.30 In addition, Eighth Amendment
cases, including Enmund, treated culpability as important in justifying both
death and prolonged imprisonment as proportional.31 Accordingly, they
concluded, felony murder rules violated a constitutional requirement that
severe punishment be conditioned on culpability.32
From this perspective, death is disproportionate for felony murder,
because any severe punishment is disproportionate for felony murder. On
this view, the dubious practice is not imposing capital punishment for felony
State v. Lyons, 924 P.2d 802 (Or. 1996); State v. Villani, 491 A.2d 976, 981 (R.I. 1985);
Littrell v. State, 271 S.W.3d 273, 279 (Tex. Crim. App. 2008); State v. Womac, 160 P.3d 40,
48 (Wash. 2007) (en banc); State v. Jenkins, 729 S.E.2d 250, 259 (W. Va. 2012); State v.
Krawczyk, 657 N.W.2d 77, 85 (Wis. Ct. App. 2002); Roderick v. State, 858 P.2d 538, 552
(Wyo. 1993).
27 GUYORA BINDER, CRIMINAL LAW: THE OXFORD INTRODUCTIONS TO U.S. LAW 229–34
(2016).
28 See Binder, supra note 16, at 422 (“Influential critics like Herbert Wechsler and
Sanford Kadish have charged that ‘[p]rincipled argument in favor of the felony-murder
doctrine is hard to find’ because it is ‘rationally indefensible.’” (alteration in original)
(first quoting MODEL PENAL CODE § 210.2 cmt. 6 at 37 (AM. LAW INST. 1980); and then
quoting Sanford H. Kadish, The Criminal Law and the Luck of the Draw, 84 J. CRIM. L. &
CRIMINOLOGY 679, 695 (1994))).
29 Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional
Crossroads, 70 CORNELL L. REV. 446 (1985).
30 See id. at 466–67; see also United States v. U.S. Gypsum Co., 438 U.S. 422, 437–38
(1978); Lambert v. California, 355 U.S. 225 (1957); Morissette v. United States, 342 U.S.
246, 250 (1952); Baender v. Barnett, 255 U.S. 224 (1921); Holdridge v. United States, 282
F.2d 302, 310 (8th Cir. 1960).
31 See, e.g., Solem v. Helm, 463 U.S. 277 (1983); Enmund v. Florida, 458 U.S. 782, 798
(1982).
32 Roth & Sundby, supra note 29, at 492.
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murder, but imposing felony murder liability itself. Yet this position somewhat overstates the demands of Eighth Amendment proportionality and
somewhat understates the culpability implicit in felony murder. Thus, ordinary felony murder liability can be defended as proportionate in three ways.
Felony murder rules are sheltered from constitutional challenge by their
long persistence, widespread prevalence, and regular application.33 Proportionality review generally scrutinizes only penal practices sufficiently unusual
to violate “evolving standards of decency.”34 Similarly, due process review
protects only those procedural rights traditional enough to have become
essential to “ordered liberty.”35
Second, Eighth Amendment review of lengthy terms of incarceration is
less concerned with culpability than Eighth Amendment review of death
sentences. Culpability is particularly relevant to two purposes of punishment:
desert and deterrence. All else equal, the more culpable wrongdoer obviously deserves more blame. Similarly, the more culpable wrongdoer is generally more aware of the consequences of his act and so more deterrable by the
threat of punishment. By contrast, incapacitation and rehabilitation are
more concerned with the defendant’s personality and future conduct than
with the crime itself. While death sentences must be justified as serving
desert and deterrence only, the Supreme Court permits terms of imprisonment to be justified by reference to the purposes of incapacitation or rehabilitation.36 On this basis, the Court has upheld life terms for such nonviolent
offenses as theft and cocaine possession.37 If lengthy terms of imprisonment
need not be deserved, and if the crimes punished thereby need not be deterrable, it seems those crimes need not be culpable.
A third obstacle to a proportionality challenge to felony murder liability
is provided by arguments that felony murder liability in fact depends on culpability. Courts most often explain felony murder liability in one of two ways:
(1) that culpability with respect to death is present because of the foreseeable
dangerousness of the predicate felony, or (2) that the culpability of the pred33 According to GUYORA BINDER, FELONY MURDER 190, 307 n.64 (2012), forty-three
states, the United States, and the District of Columbia impose felony murder liability. By
the end of the nineteenth century, most states had passed felony murder statutes or interpreted murder grading provisions to impose felony murder liability. Id. at 136.
34 Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion); see also Graham v. Florida, 560 U.S. 48, 60 (2010) (holding that proportionality review of sentencing practices
requires a threshold judgment that the practice is rare).
35 Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled by Benton v. Maryland, 395
U.S. 784 (1969); see also Twining v. New Jersey, 211 U.S. 78, 106 (1908).
36 Ewing v. California, 538 U.S. 11 (2003) (plurality opinion).
37 Lockyer v. Andrade, 538 U.S. 63 (2003) (affirming fifty years to life for theft); Ewing,
538 U.S. at 28 (affirming twenty-five years to life for theft); Harmelin v. Michigan, 501 U.S.
957, 996 (1991) (affirming life without parole for cocaine possession). For criticism of the
Supreme Court’s reliance on incapacitation, see Guyora Binder & Ben Notterman, Penal
Incapacitation: A Situationist Critique, 54 AM. CRIM. L. REV. 1, 1–4 (2017); Youngjae Lee, The
Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677 (2005).
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icate felony substitutes for culpability towards death.38 While neither of
these rationales is convincing in isolation, they can be combined to make a
stronger argument.
By itself, the foreseeable danger rationale is insufficient to justify murder
liability because the foreseeable dangerousness of predicate felonies guarantees only negligence with respect to death, which falls short of the intent to
kill or gross recklessness otherwise required for murder.
Similarly, the substituted culpability rationale seems insufficient to justify
the felony murder doctrine by itself. The intent to commit the felony is
already included in the predicate felony or attempt, for which the defendant
can be separately punished in many jurisdictions. Moreover, there is no reason to punish the resultant death as well, unless the defendant is culpable for
that result. Nor can the intent to commit the predicate felony be treated as
equal in culpability to the intent to kill—in limiting capital punishment of
crimes against individuals to homicides, the Court has made clear that the
crimes of rape, child sexual abuse, and robbery deserve less punishment than
the crime of murder.39 Indeed, the Court concluded that “in determining
whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against
individual persons.”40
When we combine the foreseeable danger of the felony with its criminal
purpose, however, we have a rationale for severely punishing a homicide:
“[F]elony murder involves two kinds of culpability: negligently imposing a
significant and apparent risk of death, and doing so for a very bad reason.”41
Insofar as felony murder is conditioned on proof of a foreseeably dangerous
felony and foreseeable causation of death, it requires proof of negligence.
This culpability makes felony murderers morally responsible for the deaths
for which they are punished. And while felonious motives do not alone suffice to justify murder liability, they can enhance the culpability of negligent
wrongdoing. Motives often affect assessments of culpability. As the Court
observed in Solem v. Helm, “A court . . . is entitled to look at a defendant’s
motive in committing a crime. Thus a murder may be viewed as more serious
38 See Roth & Sundby, supra note 29, at 460. Some courts offer a third rationale that
does not depend on culpability: that holding felons strictly liable for accidental death
deters predicate felonies or deters their careless commission. However, this deterrence
rationale is weak. Because certain punishment deters more effectively than severe punishment, punishment lotteries do not deter efficiently. Thus, punishing an occasional unexpected death severely is a poor way to deter conduct creating a risk of death, including
felonies. See Anthony N. Doob & Cheryl Marie Webster, Sentence Severity and Crime:
Accepting the Null Hypothesis, 30 CRIME & JUST. 143 (2003).
39 Kennedy v. Louisiana, 554 U.S. 407 (2008) (rape of a child); Enmund v. Florida,
458 U.S. 782, 798 (1982) (robbery); Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion) (rape of an adult woman).
40 Kennedy, 554 U.S. at 438 (emphasis added).
41 BINDER, supra note 33, at 38.
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when committed pursuant to a contract.”42 Similarly, the Model Penal Code
conditions negligence and recklessness on willingness to impose a risk that is
not only “substantial,” but also “unjustifiable.”43 Reckless homicide is aggravated from manslaughter to murder in many jurisdictions by a particularly
cruel attitude or an antisocial purpose.44 Finally, intentional murder can be
aggravated to capital murder by a motive of financial gain, bigotry, or
cruelty.45
Adding a felonious motive to the negligent imposition of a risk of death
yields more culpability. “Thus felony murder liability rests on a simple and
powerful idea: that the guilt incurred in attacking or endangering others
depends on one’s reasons for doing so.”46 Paul Robinson’s and John
Darley’s empirical study of popular views of moral desert provided some evidence that the public views felony murder in this way. Their subjects were
willing to sentence negligent killers to twenty-five-year terms if the killing was
in the course of armed robbery.47 The most persuasive account of felony
murder is that, when properly imposed, it combines two dimensions of culpability: the negligent imposition of a substantial risk of death and the imposition of this risk for a felonious motive.
In sum, felony murder is not a crime of strict liability. Instead, it is a
crime of careless violence in the pursuit of a felonious end. Indeed, this is
precisely how the Supreme Court has described the culpability that, from the
standpoint of the Eighth Amendment, justifies felony murder liability, but
fails to justify capital liability. In Tison v. Arizona, Justice O’Connor
explained:
[T]he Arizona Supreme Court attempted to reformulate “intent to kill” as a
species of foreseeability. The Arizona Supreme Court wrote:
“Intend [ sic] to kill includes the situation in which the defendant
intended, contemplated, or anticipated that lethal force would or might be
used or that life would or might be taken in accomplishing the underlying
felony.”
This definition of intent is broader than that described by the Enmund
Court. Participants in violent felonies like armed robberies can frequently
“anticipat[e] that lethal force . . . might be used . . . in accomplishing the
42 Solem v. Helm, 463 U.S. 277, 293–94 (1983); see also Guyora Binder, The Rhetoric of
Motive and Intent, 6 BUFF. CRIM. L. REV. 1 (2002); Carissa Byrne Hessick, Motive’s Role in
Criminal Punishment, 80 S. CAL. L. REV. 89 (2006).
43 MODEL PENAL CODE § 2.02(c)–(d) (AM. LAW INST. 1985).
44 See, e.g., People v. Protopappas, 246 Cal. Rptr. 915 (Cal. Ct. App. 1988); Ramsey v.
State, 154 So. 855 (Fla. 1934).
45 See SAMUEL H. PILLSBURY, JUDGING EVIL: RETHINKING THE LAW OF MURDER AND MANSLAUGHTER 109–10 (1998) (discussing aggravated murder).
46 Guyora Binder, The Culpability of Felony Murder, 83 NOTRE DAME L. REV. 965, 968
(2008).
47 PAUL H. ROBINSON & JOHN M. DARLEY, JUSTICE, LIABILITY, AND BLAME: COMMUNITY
VIEWS AND THE CRIMINAL LAW 169–81 (1995) (noting that subjects would impose terms of
approximately twenty-five years for negligent homicide in the course of an armed
robbery).
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underlying felony.” Enmund himself may well have so anticipated. Indeed,
the possibility of bloodshed is inherent in the commission of any violent
felony and this possibility is generally foreseeable and foreseen; it is one
principal reason that felons arm themselves. The Arizona Supreme Court’s
attempted reformulation of intent to kill amounts to little more than a
restatement of the felony-murder rule itself.48
While killing foreseeably in furtherance of a grave felonious purpose
may establish enough culpability to justify a lengthy term of incarceration as
proportionate, that does not mean it suffices to justify capital punishment as
proportionate, because proportionality review of death is more demanding.
We now turn to that more challenging problem.
II.
CAPITAL PUNISHMENT
FOR
FELONY MURDER
Justifying capital punishment as proportionate is more challenging than
justifying prolonged incarceration as proportionate for four reasons. First,
death can only be justified on the basis of desert and deterrence, not incapacitation or rehabilitation.49 Accordingly, it must be conditioned on culpability. Second, among offenses against persons, the Court has reserved death
for murder.50 Third, capital punishment is limited to a narrower class of
murders aggravated by facts—such as greater culpability—bearing on desert
and deterrence.51 Fourth, because execution is now very rare,52 application
of the death penalty to any class of offenders may seem “cruel and unusual”
in the sense of violating “evolving standards of decency.”53 Together, these
considerations make it hard to justify death for felony murder, absent greater
culpability than negligence towards death in the pursuit of a serious felony.
If extended from accomplices in felony murder to actual killers, the
holdings in Enmund and Tison offer a solution to this problem. These deci48 Tison v. Arizona, 481 U.S. 137, 150–51 (1987) (second, third, fourth, and fifth alterations in original) (citation omitted) (quoting State v. Tison, 690 P.2d 755, 757 (Ariz.
1984) (en banc)).
49 Roper v. Simmons, 543 U.S. 551, 571 (2005); Gregg v. Georgia, 428 U.S. 153, 183
(1976) (plurality opinion).
50 Kennedy v. Louisiana, 554 U.S. 407 (2008); Coker v. Georgia, 433 U.S. 584 (1977)
(plurality opinion).
51 Zant v. Stephens, 462 U.S. 862, 877 (1983); Godfrey v. Georgia, 446 U.S. 420 (1980)
(plurality opinion). To justify greater punishment on grounds of desert or deterrence,
these aggravators must distinguish the offense on the basis of greater culpability or greater
harm. Kennedy, 554 U.S. at 445–46 (punishing lesser harm more severely than greater
harm creates perverse incentives to commit greater harm); JEREMY BENTHAM, THE THEORY
OF LEGISLATION 322–23 (1931) (arguing that deterrence requires that greater harm be
punished more severely); Crump & Crump, supra note 14, at 367–69 (discussing desert as a
function of harm and culpability).
52 Executions by Year, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/
executions-year (last updated Oct. 19, 2016) (indicating 1439 executions from 1976 to
2016; 162 executions from 2012–2016).
53 Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion); see Enmund v. Florida,
458 U.S. 782, 798 (1982).
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sions restrict capital punishment of accomplices in fatal felonies to those
whose mental states would suffice for murder liability without the felony murder rule. Such accomplices have the culpability required for ordinary murder, plus an additional culpable mental state: a purpose to commit a very
grave felony. Intentional killers are not death-eligible unless their murders
are aggravated by some other circumstance, such as a felonious motive. By
like reasoning, felony murderers should not be death-eligible unless their
felony murders are aggravated by a culpable mental state of gross recklessness or intent to kill. Conditioning capital punishment of felony murder on
recklessness accomplishes this because killing recklessly in the pursuit of an
antisocial purpose is one common definition of gross recklessness.54 A grave
felony is a very, very antisocial purpose. It would follow that killing recklessly
in the pursuit of such a felony includes and even exceeds one conception of
gross recklessness. Confining capital punishment of felony murder to reckless killings therefore ensures that capital felony murders will be in at least
one respect worse than other felony murders and other grossly reckless
murders. Of course, confining capital punishment of felony murders to killers and accomplices who intended death would have the further benefit of
ensuring that capital felony murders would be in one respect worse than
other intentional murders. However, this would require overturning Tison.
A.
General Death Penalty Jurisprudence: Proportionality Through Rational
Selection of the Most Culpable, So as to Advance
Deterrence and Retribution
Our examination of the proportionality of capital punishment of felony
murder begins with the proposition that the Eighth Amendment requires
culpability for capital punishment. The touchstone of the Cruel and Unusual Punishment Clause is proportionality, and this demands rational selection of those who most deserve death.
The Court bore witness to this principle in its 1976 decision in Roberts v.
Louisiana, holding that the Constitution forbids the mandatory execution of
all first-degree murderers.55 Instead, capital punishment must be limited to
54 See, e.g., People v. Washington, 402 P.2d 130, 134 (Cal. 1965) (in bank) (explaining
the felony murder doctrine is unnecessary where the defendant acted with a “base, antisocial motive and with wanton disregard for human life” (quoting People v. Thomas, 261
P.2d 1, 7 (Cal. 1953) (in bank) (Traynor, J., concurring))); see also People v. Protopappas,
246 Cal. Rptr. 915, 921 (Cal. Ct. App. 1988) (holding that a dentist’s egregious overdose of
an anesthetic drug on a manifestly frail patient can prove “implied malice” so as to establish “abandoned and malignant heart” murder (quoting CAL. PENAL CODE § 188 (1982)));
Ramsey v. State, 154 So. 855, 856 (Fla. 1934) (en banc) (unintentional murder requires
facts “evincing a depraved mind regardless of human life” (quoting COMP. GEN. LAWS
§ 7137 (1927) (internal quotation marks omitted))).
55 Roberts v. Louisiana, 428 U.S. 325 (1976) (plurality opinion); see also Woodson v.
North Carolina, 428 U.S. 280 (1976) (plurality opinion).
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those offenders who commit “a narrow category of the most serious crimes,”
and accordingly to those “most deserving of execution.”56
Most death penalty jurisdictions satisfy these strictures by requiring the
jury to find at least one aggravating circumstance at the sentencing phase.57
Others permissibly use narrowing criteria at the guilt phase.58 In all cases,
though, states must give precise definition to the aggravating factors that can
result in a capital sentence so that the death penalty is reserved for a narrow
category of crimes and offenders.59 These few may not be selected on an
arbitrary basis60—they must be selected by criteria that not only “narrow the
class of persons eligible for the death penalty” in numerical terms, but also
“reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”61
Moreover, the only reasons that have been recognized by the Supreme
Court as adequate to “justify” the extreme penalty of death are “retribution
and deterrence of capital crimes by prospective offenders.”62 Unless the
imposition of the death penalty “measurably contributes to one or both of
these goals, it ‘is nothing more than the purposeless and needless imposition
of pain and suffering,’ and hence an unconstitutional punishment.”63 This
requirement of reasonably justified narrowing—in service to the deterrent
and retributive purposes of punishment—defines the constitutional right to
proportionality. Each jurisdiction may assess desert and deterrence somewhat differently, but each must select defendants as death-eligible according
to its own legislatively determined and consistently applied criteria of desert
or deterrence.
To rationally select those whose deaths further retribution or advance
deterrence, though, requires an assessment of culpability. The Court has
denied that execution can serve either punitive purpose when the defendant
lacks a culpable mental state: “Retribution is not proportional if the law’s
most severe penalty is imposed on one whose culpability or blameworthiness
56 Atkins v. Virginia, 536 U.S. 304, 319 (2002).
57 See, e.g., Proffitt v. Florida, 428 U.S. 242, 253 (1976) (plurality opinion) (reviewing
Florida sentencing scheme); Gregg v. Georgia, 428 U.S. 153, 162–64 (1976) (plurality
opinion) (reviewing Georgia sentencing scheme).
58 See, e.g., Lowenfield v. Phelps, 484 U.S. 231 (1988). In Lowenfield, the sole aggravating circumstance was the fact that the defendant killed or endangered multiple victims. Id.
at 235. This circumstance was established by the defendant’s conviction on multiple murder counts. Id. The Court found that the underlying crime of murder was adequately
narrowed by this finding, even though the finding took place at the guilt phase, because
multiple murder is not a defining element of murder itself. Id. at 241; see also Jurek v.
Texas, 428 U.S. 262, 269 (1976) (plurality opinion).
59 Zant v. Stephens, 462 U.S. 862 (1983); Godfrey v. Georgia, 446 U.S. 420, 428–29
(1980) (plurality opinion).
60 Furman v. Georgia, 408 U.S. 238, 256 (1972) (Douglas, J., concurring).
61 Zant, 462 U.S. at 877.
62 Atkins v. Virginia, 536 U.S. 304, 319 (2002) (quoting Gregg, 428 U.S. at 183); Gregg,
428 U.S. at 183.
63 Enmund v. Florida, 458 U.S. 782, 798 (1982) (quoting Coker v. Georgia, 433 U.S.
584, 592 (1977) (plurality opinion)).
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is diminished . . . , [and] the same characteristics that render [certain
defendants] less culpable . . . suggest as well that [certain defendants] will be
less susceptible to deterrence.”64
The connection between culpability and the retributive aim of punishment is obvious—one who intentionally does wrong ought to be punished
more than one who does wrong negligently, and one who does wrong without fault usually deserves no punishment.65 This follows from the widespread assumption that moral responsibility for wrongdoing depends on the
exercise of choice.66 As Justice Jackson wrote in Morissette,
The contention that an injury can amount to a crime only when inflicted
by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between
good and evil.67
Similarly intuitive is the proposition that deterrence is best advanced by
conditioning punishment on culpability. As Jeremy Bentham (a founder of
deterrence theory) wrote, “Punishments are inefficacious when directed
against individuals . . . who have acted without intention [or] who have done
the evil innocently.”68 The less aware an actor is of violating the law, the less
the actor can be influenced by the threat of a deterrent sanction.
In Atkins v. Virginia, the Court observed that subjecting the mentally
retarded to the death penalty disserved both retribution and deterrence.69
Stressing the relationship of culpability to the goal of retribution, the Court
said:
[T]he severity of the appropriate punishment necessarily depends on the
culpability of the offender. Since Gregg, our jurisprudence has consistently
64 Roper v. Simmons, 543 U.S. 551, 571 (2005).
65 “In principle, we blame more severely intended wrongdoing than unintended
wrongdoing.” LEO ZAIBERT, FIVE WAYS PATRICIA CAN KILL HER HUSBAND: A THEORY OF
INTENTIONALITY AND BLAME 245 (2005). The drafters of the Model Penal Code explained
their decision to limit strict liability to noncriminal violations in the following terms:
“Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant’s act was culpable.” MODEL PENAL CODE
§ 2.05, at 282–83 (AM. LAW INST. 1985).
66 MICHAEL MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 405–06
(1997) (explaining the choice principle).
67 Morissette v. United States, 342 U.S. 246, 250 (1952) (footnote omitted).
68 BENTHAM, supra note 51, at 322–23. H.L.A. Hart famously disagreed, reasoning that
absolving the undeterrable might encourage the deterrable to offend and feign undeterrability. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF
LAW (1968) [hereinafter HART, 1st ed.]; H.L.A. HART, PUNISHMENT AND RESPONSIBILITY:
ESSAYS IN THE PHILOSOPHY OF LAW 19 (2d ed. 2008). However, this sort of speculation
ignores Bentham’s premise that the social cost of punishment requires probable and substantial deterrent benefits to justify punishment. In any case, “the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.” Cass R.
Sunstein & Justin Wolfers, A Death Penalty Puzzle, WASH. POST (June 30, 2008), http://www
.washingtonpost.com/wp-dyn/content/article/2008/06/29/AR2008062901476.html.
69 Atkins v. Virginia, 536 U.S. 304, 318–19 (2002).
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confined the imposition of the death penalty to a narrow category of the
most serious crimes. . . . If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser
culpability of the mentally retarded offender surely does not merit that form
of retribution.70
The Court also emphasized the connection between culpability and
deterrence: “[I]t is the same cognitive and behavioral impairments that make
these defendants less morally culpable . . . that also make it less likely that
they can process the information of the possibility of execution as a penalty
and, as a result, control their conduct based upon that information.”71
The Court similarly linked both retribution and deterrence to culpability in Roper v. Simmons when it banned the death penalty for juveniles who
committed their crimes while under the age of eighteen:
Retribution is not proportional if the law’s most severe penalty is imposed
on one whose culpability or blameworthiness is diminished, to a substantial
degree, by reason of youth and immaturity.
. . . “[T]he likelihood that the teenage offender has made the kind of costbenefit analysis that attaches any weight to the possibility of execution is so
remote as to be virtually nonexistent.”72
The Court has not limited its application of the culpability requirement
to cases of diminished mental capacity, though. In Woodson v. North Carolina,
a mandatory death penalty statute was found to violate the Eighth Amendment by preventing individualized consideration of the offender.73 Noting
that Woodson was a non-triggerman accomplice who waited in the getaway
car during a fatal robbery, the plurality stated that “the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process. It recognized that
individual culpability is not always measured by the category of the crime
committed.”74 Part of the problem of mandatory execution of murderers,
then, was blindness to their individual culpability, and particularly in the context of felony murder. However, the Court did not reach “the question
whether imposition of the death penalty on petitioner Woodson would have
been so disproportionate to the nature of his involvement in the capital
offense.”75
Individual culpability was also an important concern in the Court’s decision in Lockett v. Ohio.76 Like Woodson, Lockett was an accomplice who
70 Id. at 319.
71 Id. at 320.
72 Roper v. Simmons, 543 U.S. 551, 571–72 (2005) (quoting Thompson v. Oklahoma,
487 U.S. 815, 837 (1988) (plurality opinion)).
73 Woodson v. North Carolina, 428 U.S. 280, 301 (1976) (plurality opinion).
74 Id. at 298 (quoting Furman v. Georgia, 408 U.S. 238, 402 (1972) (Burger, C.J.,
dissenting)).
75 Id. at 305 n.40.
76 438 U.S. 586 (1978).
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remained in a getaway car during a fatal robbery.77 A state statute mandated
the death penalty for aggravated murder (here, participation in a felony was
one of the aggravators)78 unless the defendant could show insanity, duress,
provocation, or victim consent.79 The Court overturned the death sentence
“because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age,
lack of specific intent to cause death, and her relatively minor part in the
crime.”80 However, the Court did not reach the question whether “the death
penalty is constitutionally disproportionate for one who has not been proved
to have taken life, to have attempted to take life, or to have intended to take
life.”81
In sum, the Eighth Amendment requires the rational selection of
offenders worthiest of capital punishment, and this selection must be
animated by considerations of retribution and deterrence. These penal purposes, in turn, can only be advanced when the central criterion of selection is
mental culpability for the offense. As we will see, in considering the capital
punishment of felony murder, Enmund and Tison would also emphasize the
importance of culpability as the measure of desert and the target of
deterrence.
B.
Felony Murder Eighth Amendment Jurisprudence
We have seen that culpability guides Eighth Amendment jurisprudence
more generally, and now we can turn to a discussion of how this guidance
plays out in the context of felony murder more specifically. Because the fact
patterns in felony murder cases can vary widely with respect to the perpetrator’s involvement in the killing and also with respect to his mental state, the
Supreme Court has paid special attention to this type of homicide.
1.
Enmund v. Florida
In Enmund v. Florida,82 an elderly couple was robbed and fatally shot by a
younger couple who had stopped at their house asking for help with a disabled vehicle.83 This younger couple “shot and killed both [members of the
elderly couple], dragged them into the kitchen, and took their money and
fled.”84 However, witnesses also identified a getaway driver who sat through
these events in a car 200 yards from the house: Earl Enmund.85 The case
77 Id. at 590.
78 Id. at 589.
79 Id. at 593–94.
80 Id. at 597 (plurality opinion) (emphasis added).
81 Id. at 609 n.16.
82 Enmund v. Florida, 458 U.S. 782 (1982).
83 Id. at 784.
84 Id.
85 Id. Enmund was accompanied by Ida Jean Shaw, his common law wife and the
mother of one of the killers. Id. Shaw apparently drove the car, which belonged to her
and Enmund, to the scene of the crime. Id.
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thus presented the question of how substantial the offender’s participation in
and intent regarding the killing must be for capital punishment to be
proportionate.
First, the Court surveyed the existing state laws on felony murder and
capital punishment. It noted that in only twenty-one jurisdictions could felony murder be capitally punished without proof of intent or recklessness.86
The Court added that “only a small minority of jurisdictions—eight—allow
the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed.”87
Thus, while “the current legislative judgment”88 was not “wholly unanimous,”89 it nevertheless weighed against the imposition of capital punishment for that crime.90
Next, the Court looked to the sentencing decisions of juries when faced
with similar sets of facts and found that only six of 362 non-triggerman felony
murder cases resulted in a death sentence.91 These six executions all took
place in 1955, with none since.92 Moreover, the Court noted that of the 796
(and analyzing the 739 for whom sufficient data was available) inmates on
death row at the time, only forty-one were nonparticipants in the assault of
the victim, and only three were sentenced absent a finding of intent to kill.93
Of forty-five felony murderers on death row in Florida, thirty-six were found
to have intended to kill.94 In eight other cases, no finding of intent was
made, but the defendant was described as a “triggerman.”95 “In only one
case—Enmund’s—there was no finding of an intent to kill and the defendant was not the triggerman.”96
Finally, the Court employed its own conceptual analysis of the justifications for capital punishment when applied to these circumstances. Neither
deterrence nor retribution—the hallmark justifications of punishment—warranted a death sentence in Enmund’s case.
“[C]apital punishment can serve as a deterrent only when murder is the
result of premeditation and deliberation,” for if a person does not intend
that life be taken or contemplate that lethal force will be employed by
others, the possibility that the death penalty will be imposed for vicarious
86
87
88
89
90
91
92
93
94
95
96
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
at
at
at
at
at
at
at
at
789–90.
792.
792–93.
793 (quoting Coker v. Georgia, 433 U.S. 584, 596 (1977)).
793.
794.
794–95.
795.
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felony murder will not “enter into the cold calculus that precedes the decision to act.”97
Similarly, the demands of retribution “very much depend[ ] on the
degree of [the defendant’s] culpability”:98
The focus must be on his culpability, not on that of those who committed
the robbery and shot the victims . . . . Enmund did not kill or intend to kill
and thus his culpability is plainly different from that of the robbers who
killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the [victims]. This was impermissible under the
Eighth Amendment.99
Thus, the Court regarded the actual killers as more deserving of death
not merely because they killed, but because—under the facts of the case—
their culpability was greater (both for the purposes of deterrence and retribution). All this led to the Enmund rule: Florida could not constitutionally
impose a sentence of death “in the absence of proof that Enmund killed or
attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken.”100 This confusing formulation may be read
to imply that anyone who did kill is death-eligible regardless of culpability
towards death. However, this reading is not compelled. It may also be read
as requiring a mental state of at least “contemplating” the victim’s death for
all death-eligible defendants, including killers.
The majority opinion in Enmund was written by Justice White, who in
Lockett v. Ohio101 wrote that “it violates the Eighth Amendment to impose the
penalty of death without a finding that the defendant possessed a purpose to
cause the death of the victim.”102 Moreover, in Enmund, Justice White several times used the term “nontriggerman” to describe the category of people
who did not “kill,” and so described Enmund himself.103 It seems that he
viewed the actual killer as someone who does more than perform an act necessary to the death. Indeed, if we view all necessary conditions for a result as
causes, Enmund, by supplying the car used to transport the killers to the
scene of the felony, could be said to have thereby caused the deaths. That
Justice White distinguished “killing” from merely “causing death” is confirmed by his reference to “two killings that [Enmund] did not commit and
had no intention of committing or causing.”104 Rather than embracing everyone whose conduct was necessary to the death, it seems that “one who killed”
97 Id. at 799 (citations omitted) (first quoting Fisher v. United States, 328 U.S. 463, 484
(1946) (Frankfurter, J., dissenting); and then quoting Gregg v. Georgia, 428 U.S. 153, 186
(1976) (plurality opinion)).
98 Id. at 800.
99 Id. at 798.
100 Id. at 801.
101 438 U.S. 586 (1978).
102 Id. at 624 (White, J., concurring in part, dissenting in part, and concurring in the
judgment) (emphasis added).
103 Enmund, 458 U.S. at 786 n.2, 792, 793–94 n.15, 794.
104 Id. at 801 (emphasis added).
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refers only to a “triggerman” who employed a deadly weapon. Such a “triggerman” may not have intended death, but in attacking a person with a
deadly weapon, he will likely have “contemplated that life would be taken.”
2.
Cabana v. Bullock
The 1986 decision in Cabana v. Bullock105 held that Enmund’s requirement that the defendant sufficiently participate in or expect the killing is not
an element of the crime of felony murder that must be proven to a jury.
Rather, the Enmund rule is a “substantive limitation on sentencing” imposed
by the Eighth Amendment.106 Accordingly, even though satisfying Enmund
requires a finding of fact, that finding may be made by a trial or appellate
judge.107
[T]he decision whether a sentence is so disproportionate as to violate the
Eighth Amendment in any particular case, like other questions bearing on
whether a criminal defendant’s constitutional rights have been violated, has
long been viewed as one that a trial judge or an appellate court is fully competent to make.108
Cabana was, like Enmund, a 5-4 decision written by Justice White.109 Yet
the other Justices in the majority in Cabana were the four who had dissented
in Enmund: O’Connor, Rehnquist, Powell, and Burger.110 One of the major
concerns expressed by Justice O’Connor, in writing for the Enmund dissenters, had been that the proportionality of death to the defendant’s culpable
mental state should be determined at the capital sentencing stage rather
than in determining guilt for a death-eligible offense.111 Thus, in Cabana,
Justice White was conceding that whether the defendant had killed,
attempted to kill, or intended to kill could be a sentencing question rather
than a guilt question, yet he continued to insist that death was disproportionate for those outside this category.
Justice White’s opinion contained some phrasing compatible with a
mechanical reading of Enmund. First, White contrasted the finding of disproportionality in Enmund with the kind of “case-by-case, totality of the circumstances” finding made in Solem v. Helm (that a sentence of life without parole
was disproportionate for passing a forged check):112 “Enmund, by contrast,
imposes a categorical rule: a person who has not in fact killed, attempted to
105 Cabana v. Bullock, 474 U.S. 376 (1986), abrogated on other grounds by Pope v. Illinois,
481 U.S. 497 (1987).
106 Cabana, 474 at 386.
107 Id.
108 Id. Note, Cabana was unaffected by Ring v. Arizona, which explicitly discussed the
prior case and did not alter its holding. See Ring v. Arizona, 536 U.S. 584, 598 (2002).
109 See Cabana, 474 U.S. at 378.
110 See id.
111 Enmund v. Florida, 458 U.S. 782, 828 (O’Connor, J., dissenting).
112 Solem v. Helm, 463 U.S. 277 (1983). The majority in that case might not have
agreed that its test, comparing the gravity of the crime, the severity of the sentence, the
severity of sentences for similar crimes in other jurisdictions, and the gravity of crimes
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kill, or intended that a killing take place or that lethal force be used may not
be sentenced to death.”113 Justice White added that “[i]f a person sentenced
to death in fact killed, attempted to kill, or intended to kill, the Eighth
Amendment itself is not violated by his or her execution regardless of who
makes the determination of the requisite culpability.”114 It seems unlikely
that Justice White meant that the Eighth Amendment has no requirements
beyond the Enmund rule, or that it permits capital punishment for negligent
homicide, but the sentence can be read that way. On the other hand,
White’s opinion reiterates his assumption that “killing, attempting to kill, or
intending to kill” all permit execution insofar as they entail “the requisite
culpability.”
3.
Tison v. Arizona
The Court returned to the substantive development of the rule in Tison
v. Arizona.115 In Tison, two brothers—Ricky and Raymond—involved themselves in a larger plot to break their father, Gary Tison, out of jail.116 After
the brothers successfully infiltrated the prison and all three had escaped it,
the group flagged down a car with passing motorists.117 After they transferred belongings to the new car, the problem of the still-living witnesses
presented itself:
Ricky Tison reported that [the father of the family of motorists] begged, in
comments “more or less directed at everybody,” “Jesus, don’t kill me.” . . .
[He then] asked the Tisons . . . to “[g]ive us some water . . . just leave us out
here, and you all go home.” Gary Tison then told his sons to go back to the
Mazda and get some water. Raymond later explained that his father “was
like in conflict with himself . . . . What it was, I think it was the baby being
there and all this, and he wasn’t sure about what to do.”
The petitioners’ statements diverge to some extent, but it appears that
both of them went back towards the Mazda . . . while . . . Gary Tison stayed at
the Lincoln guarding the victims. Raymond recalled being at the Mazda
filling the water jug “when we started hearing the shots.” Ricky said that the
brothers gave the water jug to Gary Tison who then . . . went behind the
Lincoln . . . [and] raised the shotgun[ ] and started firing. In any event,
petitioners agree they saw . . . their father brutally murder their four captives
with repeated blasts from [his] shotgun[ ]. Neither made an effort to help
the victims, though both later stated they were surprised by the shooting.118
punished with similar severity in the same jurisdiction, was a “totality of the circumstances”
standard. See id. at 292.
113 Cabana, 474 U.S. at 386.
114 Id.
115 Tison v. Arizona, 481 U.S. 137 (1987).
116 Id. at 139. A third brother was also involved in the plot, who was later shot by
police. Id. at 141.
117 Id. at 139–40.
118 Id. at 140–41 (fifth, sixth, and seventh alterations in original) (citations omitted).
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The brothers were sentenced to death, despite the absence of evidence
that they intended to kill.119 The Arizona Supreme Court offered the dubious theory that participation in a crime in which they knew someone could
be killed constituted intent to kill.120 In a 5-4 decision authored by Justice
O’Connor—who had dissented in Enmund—the Court rejected this effort to
reconcile the Tison brothers’ death sentences with the rule in Enmund.121
Nevertheless, the majority upheld the death sentences, revising the Enmund
rule to permit execution of major participants in a fatal felony who acted
with reckless indifference to human life.122 The majority included Enmund
dissenters, Justices Rehnquist and Powell, newcomer Justice Scalia, and the
author of Enmund, Justice White.123 The dissenters—Justices Brennan, Marshall, Blackmun, and Stevens—had all been in the majority in Enmund, and
had all dissented in Cabana.124
The majority began its analysis with a discussion of Enmund. The Court
noted that that case “explicitly dealt with two distinct subsets of all felony
murders”: the first subset involved “the minor actor [in a felony], not on the
scene, who neither intended to kill nor was found to have had any culpable
mental state . . . . The Court held that capital punishment was disproportional in those cases.”125 The second subset involved “the felony murderer
who actually killed, attempted to kill, or intended to kill. The Court clearly
held that . . . jurisdictions that limited the death penalty to these circumstances could continue to exact it in accordance with local law when the circumstances warranted.”126 The Tison defendants, the Court continued, fell
in a gray area between the two, and thus Enmund did not dictate the
outcome.127
Critical to the majority’s perceived distinction were two categories: participation in the killing, and the mental state with respect to the killing:
“[The Tison brothers’] degree of participation in the crimes was major
rather than minor, and the record would support a finding of the culpable
mental state of reckless indifference to human life.”128 It was these two
things that made Tison different from Enmund.
The concept of participation was capacious, including both participation
in the felony and participation in the killing.129 The decision identified as
119 Id. at 143.
120 Id. at 144.
121 Id. at 138.
122 Id. at 158.
123 See id. at 138.
124 See id.
125 Id. at 149–50.
126 Id. at 150.
127 Id. The Tison opinion did not, as did Enmund, use the term triggerman in such a
way as to narrow the meaning of the category of “actual killers.”
128 Id. at 151.
129 Id. See various representations throughout the opinion: “minimal participation in a
capital felony,” id. at 147 (quoting Enmund v. Florida, 458 U.S. 782, 792 (1982)); “participation in the felony,” id. at 147; “degree of participation in the murders,” id. at 148
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major participants offenders (such as the Tison brothers) who aided the killing by helping to capture victims or prevent their escape, remaining present
when they were killed, and continuing their participation in the felony afterwards.130 Just as the Enmund Court assumed that actual killers are highly
culpable, the Tison Court assumed that “the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.”131 Since the triggerman is obviously a “major
participant” in a felony murder, Tison can be read to require that a triggerman must act with reckless indifference to human life to be capitally punishable for felony murder.
As in Enmund, the majority then surveyed state laws. It concluded that
major participants in killing who were recklessly indifferent to death were, on
the whole, subject to capital punishment. It found “substantial and recent
legislative authorization of the death penalty . . . under [such] circumstances.”132 Legislative changes were echoed by state high court
interpretations.133
Again, though, the majority’s final determination rested on its own analysis of retribution and deterrence, and this in turn centered on culpability:
A critical facet of the individualized determination of culpability required
in capital cases is the mental state with which the defendant commits the
crime. Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished.134
But, Justice O’Connor reasoned, the Enmund formula assumed too distinct a dichotomy between intentional and unintentional killing, because not
all intentional killers are sufficiently culpable to deserve death, while some
unintentional killers are sufficiently culpable.
A narrow focus on the question of whether or not a given defendant
“intended to kill[ ]” . . . is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend
to, and do, kill are not criminally liable at all—those who act in self-defense
or with other justification or excuse. Other intentional homicides, though
(emphasis omitted); “participation in the felony murder,” id. at 149; “degree of participation in the crimes,” id. at 151; “participation in the crime,” id. at 152; “participation in the
felony murder,” id. at 153; “major actor in a felony in which he knew death was highly
likely to occur,” id. at 154; “substantial participation in a violent felony under circumstances likely to result in the loss of innocent human life,” id., “participation in killing,” id.
at 155, “participant in . . . robbery . . . [with] no evidence that defendant himself shot the
guard but he did fire a weapon,” id.; “participation in these crimes,” id. at 158; and “participation in the felony,” id.
130 Id. at 151, 155.
131 Id. at 153.
132 Id. at 154.
133 Id. at 155.
134 Id. at 156.
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criminal, are often felt undeserving of the death penalty—those that are the
result of provocation.135
Justice O’Connor saw the Enmund formula as both underinclusive and
overinclusive. Moreover, she argued, “intent” did not capture the entire universe of death-eligible mental states:
[S]ome nonintentional murderers may be among the most dangerous and
inhumane of all—the person who tortures another not caring whether the
victim lives or dies, or the robber who shoots someone in the course of the
robbery, utterly indifferent to the fact that the desire to rob may have the
unintended consequence of killing the victim as well as taking the victim’s
property. This reckless indifference to the value of human life may be every
bit as shocking to the moral sense as an “intent to kill.”136
Notably, the examples of defendants who were and were not sufficiently
culpable to deserve death were all actual killers. The decision concluded that
“major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.”137 Yet it is important to remember that the opinion also refers to
“participation in the felony murder” and sees such participation as evidence
of “reckless indifference to human life.”138 Perhaps even more important is
the qualification preceding the Court’s conclusion: “We will not attempt to
precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty here.”139 Even if Enmund’s holding
can be read as a “categorical rule,”140 Tison’s superseding test clearly cannot
be.141
135 Id. at 157.
136 Id.
137 Id. at 158. Recall earlier we noted the different possible levels or degrees of recklessness. See supra note 11. The Tison Court tended to use the term “reckless indifference,” a term consistent with simple recklessness but, given the facts of the case, in a
manner consistent with an implication of gross recklessness. We address this ambiguity in
detail later in the Article. See infra subsection III.B.2.
138 Id. at 153.
139 Id. at 158.
140 Cabana v. Bullock, 474 U.S. 376, 386 (1986).
141 The Court’s most recent characterization of the cases, in Kennedy v. Louisiana,
describes the holdings as case-specific:
[I]n Enmund v. Florida, the Court overturned the capital sentence of a defendant
who aided and abetted a robbery during which a murder was committed but did
not himself kill, attempt to kill, or intend that a killing would take place. On the
other hand, in Tison v. Arizona, the Court allowed the defendants’ death
sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent,
and substantial.
Kennedy v. Louisiana, 554 U.S. 407, 421 (2008) (citations omitted). Importantly, Kennedy
identified only “intentional first-degree murder” as an offense for which the death penalty
was not excessive. Id. at 438. This sheds light on the reference to Enmund.
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Hopkins v. Reeves
In a 1996 habeas corpus decision, Reeves v. Hopkins, the Eighth Circuit
ruled that a defendant sentenced to death for felony murder in Nebraska
had been improperly denied jury instructions on the lesser included offenses
of second-degree murder and voluntary manslaughter.142 Because these
offenses required intent to kill, neither was ordinarily considered a lesser
included offense of felony murder, which did not require such intent. Yet
the court reasoned that a finding of intent was required by Enmund and
Tison for the defendant’s death sentence, even though he had killed the victims himself by fatally stabbing them:
[T]he death penalty cannot be imposed on a defendant without a showing
of some culpability with respect to the killing itself. Before a state can impose
the death penalty, there must be a showing of both major participation in
the killing and reckless indifference to human life. Enmund and Tison are
thus independent constitutional requirements of the mental culpability a
state must prove if it is to impose a death sentence; if the death sentence is
to be imposed, the state must necessarily produce some evidence of intent
with respect to the killing. Nebraska’s rationale for prohibiting lesser
included offense instructions in felony murder cases thus disappears when
the defendant is sentenced to death.143
In Hopkins v. Reeves, the Supreme Court reversed, reasoning that the culpability required by the Eighth Amendment for the imposition of death was
not an offense element, under Cabana v. Bullock.144 It followed that a capital
sentence did not make felony murder a crime of intentional killing, and so a
crime requiring intent to kill still could not be a lesser included offense of
felony murder.145 In dissent, Justice Stevens agreed with the Eighth Circuit
that “under Enmund v. Florida [the state could not impose the death penalty]
without proving that respondent intended to kill his victim, or under Tison v.
Arizona that he had the moral equivalent of such an intent.”146 Significantly,
Justice Thomas’s majority opinion never challenged the assumptions of the
Eighth Circuit and of Justice Stevens that Enmund and Tison required culpability on the part of actual killers.
III.
THE PROBLEM: HOW
THE
UNDERSTAND “ACTUALLY KILLED”
CULPABILITY REQUIREMENT
TO
IN
LIGHT
OF
So far, we have discussed how culpability justifies liability for the offense
of felony murder, and also how the Eighth Amendment punishment analysis
is similarly guided by culpability. We have explained that because culpability
and participation can vary so widely, there are special rules for the capital
punishment of felony murder. An offender cannot be death-eligible who has
142 Reeves v. Hopkins, 102 F.3d 977, 986 (8th Cir. 1996).
143 Id. at 984 (emphasis omitted) (citations omitted).
144 Hopkins v. Reeves, 524 U.S. 88, 100 (1998).
145 Id. at 99–100.
146 Id. at 101–02 (Stevens, J., dissenting) (citations omitted).
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not “actually killed, attempted to kill, or intended to kill”147 or acted with
“major participation in the felony committed, combined with reckless indifference to human life.”148
It is now time to ask whether this doctrinal test created by the Supreme
Court actually does the work it is supposed to do—whether the Enmund-Tison
rule adequately assesses culpability. What is immediately apparent is that one
clause of the test seems to say nothing about culpability at all: “actually killed”
(versus “intended to kill” or “attempted to kill”).149 We know that it is certainly possible to kill someone without intending it (say, in a car accident),
and that this is also possible when committing a felony (say, in a car accident
while a robber drives away from a bank robbery). Thus, a mechanical reading of the first clause of the test permits a result—capital punishment for the
inadvertent actual killer—at odds with the rule’s justification. Yet we shall
see that a more reflective reading of the Enmund and Tison opinions is available, which precludes capital punishment of inadvertent accomplices in felony
murder without necessarily permitting capital punishment of inadvertent
perpetrators of felony murder.
A.
1.
The Mechanical Reading
Actual Killing as Independently Sufficient: The Problem of the
Inadvertent Actual Killer
The mechanical reading takes “or” at face value and sees that word as
creating a disjunctive test with four distinct and sufficient categories of cases.
If an offender actually killed someone, the Eighth Amendment is satisfied; if
he intended to kill, it is satisfied; if he attempted to kill, it is satisfied. Moreover, if these requirements cannot be met, the punishment is still constitutional if the conduct evidenced reckless indifference to human life and major
participation in the felony. The mechanical reading does not create a sliding
scale of cases descending in egregiousness—it creates four different categories that need not relate to each other at all.
Under this reading, the “actual killing” category neither explicitly nor
implicitly requires culpability. This reading views this silence regarding
mental state as an omission pregnant with meaning: it means that mental
state is irrelevant.
A chart will help to demonstrate the features of this type of mechanical
reading of the Enmund-Tison test, where an “X” denotes eligibility for capital
punishment.
147 Tison v. Arizona, 481 U.S. 137, 150 (1987).
148 Id. at 158.
149 Recall that attempt implies intent. See supra Part I.
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FIGURE 1
LOWER COURT OPINIONS
Mens Rea (culpability)
None
Negligence
Recklessness
Minor
X
Major
Killer
Intent
(or attempt)
X
X
X
X
X
X
The mechanical reading of Enmund and Tison permits execution of the
actual killer irrespective of his intent to kill. It permits capital punishment
for those who kill without culpability or with only a negligent mental state.
The tension between this result and the emphasis on culpability expressed in
these opinions and in Eighth Amendment jurisprudence more generally
leads us to question the validity of such an interpretation.
2.
The Problem of the Inadvertent Actual Killer Arises Because “Killing”
Does Not Necessarily Imply Culpability
Before discussing another way of reading the test, though, it is valuable
to take a historical detour to trace the changing meaning of the term “killing” as homicide law evolved. Execution of an inadvertent killer is possible
under the mechanical reading of the Enmund-Tison rule because today, “killing” has no uniform definition.
In using phrases like “kill,” “take life,” and “actually killed” in Enmund
and Tison, the Justices likely envisioned a fatal intentional shooting. After all,
this is how the victims were killed in both of these cases. Moreover, the most
common felony murder scenario is an intentional shooting during a robbery.
FBI data reveal that of the 1923 felony-type murders in 2010, 603 were perpetrated with a firearm during a robbery.150 The only other category that
comes close is that of murders committed in the course of a narcotics
offense, and of these 463, firearms were used for 391.151 The vast majority of
felony-type murders involved weapons: seventy-two percent were shootings,
ten percent were stabbings, and four percent were bludgeonings.152
150 FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS: CRIME IN THE UNITED
STATES, 2010 tbl.11 (2010), https://ucr.fbi.gov/crime-in-the-u.s/2010/crime-in-the-u.s.2010/tables/10shrtbl11.xls (listing murder circumstances by weapon).
151 Id.
152 Id. Note that when the FBI Uniform Crime Report counted homicides, this
included murder and non-negligent manslaughter, so what counted for the national homicide rate was anything a state happened to call “murder” under its own laws. See FED.
BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS: CRIME IN THE UNITED STATES: VIOLENT
CRIME (2010), https://ucr.fbi.gov/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/violentcrime/violentcrimemain.pdf .
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Moreover, the term “killing” at one time connoted culpability on its own.
In the seventeenth, eighteenth, and early nineteenth centuries, “killing” was
generally understood to mean causing death by intentionally inflicting a
wound or injury. “Malice,” the mens rea of murder in that era, meant an
intention or expectation of doing physical harm, unexcused by provocation
or self-defense.153 Indeed, “killing” was presumed malicious absent these
excuses.154 A study of a cross-section of London homicide cases between
1670 and 1830 found that fatal, unprovoked intentional stabbings, shootings,
and bludgeonings almost always resulted in murder liability, without any further evidence of intent to kill.155 Similar conduct resulted in manslaughter
liability if the victim had provoked or invited combat.156 Thus, when eighteenth-century jurists asserted that all “killing” in the course of a felony was
“murder,” they meant that a fatal intentional wounding was presumptively
malicious, while a felonious motive would preclude a claim of provocation or
self-defense, as the felony would justify resistance by the victim.157 Convictions for deaths with more attenuated causation were unknown in the common law, “for the . . . death without the stroke or other violence makes not
the homicide.”158
Early nineteenth-century American lawyers still conceived the act of killing as necessarily entailing some measure of culpability by virtue of either
violence or manifest danger. An 1804 treatise on Kentucky criminal law
defined “killing” as follows:
[N]ot only he, who by a wound or blow, or by poison, or by lying in wait, or
by strangling, famishing or suffocation, &c. directly causes another’s death,
but also in many cases he who by wilfully and deliberately doing a thing
which visibly and clearly endangers another’s life, thereby occasions his
death, shall be considered to kill him.159
By the end of the nineteenth century, however, scholars and judges reconceived the meanings of killing and malice and began to think of criminal
offenses as culpably caused injuries more generally. Accordingly, they began
to conceive killing as simply the causation of death and malice as comprising
153
See 1 MATTHEW HALE, HISTORIA PLACITORUM CORONAE: THE HISTORY OF THE PLEAS
CROWN 36–44 (London, E. & R. Nutt & R. Gosling 1736). Indeed, killing was
presumed malicious absent provocation or self-defense. According to Edward Coke,
express malice was an intention to “kill, wound or beat.” 3 EDWARD COKE, INSTITUTES OF
THE LAWS OF ENGLAND 51 (London, M. Flesher 1794).
154 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS AND CUSTOMS OF ENGLAND
*201 (1769).
155 Of forty-three murders, twenty-four were by swords or other blades, nine by shooting, six by bludgeoning, two by strangling, one by poison, and one a prolonged beating of
a child. Guyora Binder, The Meaning of Killing, in MODERN HISTORIES OF CRIME AND PUNISHMENT 88, 95–101 (Markus D. Dubber & Lindsay Farmer eds., 2007).
156 Id. at 101–02.
157 GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 280 (1978).
158 HALE, supra note 153, at 426.
159 HARRY TOULMIN & JAMES BLAIR, A REVIEW OF THE CRIMINAL LAW OF THE COMMONWEALTH OF KENTUCKY 4 (Frankfort, W. Hunter 1804).
OF THE
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a number of culpable mental states, including intent to kill, intent to
grievously injure, depraved indifference to human life, and intent to commit
certain dangerous felonies.160
Thus, while the earlier conception of killing guaranteed a measure of
culpability, that is no longer true. When killing no longer implies intentional
wounding, or intentional use of a deadly weapon, but instead encompasses
any causation of death, the term becomes unmoored from considerations of
culpability. Today there are four general approaches to defining the act element of homicide offenses, roughly equal in popularity: (1) defining homicide as causing death, and defining causal responsibility by statute;161 (2)
defining homicide or particular homicide offenses as causing death, but leaving the definition of causation to judicial elaboration;162 (3) defining homicide offenses as killing;163 and (4) leaving such offenses as “murder” and
“manslaughter” undefined by statute.164 Yet there is no association between
particular definitions of the act and particular criteria of causal responsibility.
Among jurisdictions imposing felony murder liability, causal responsibility takes two forms: “an ‘agency’ test that restricts liability to deaths directly
caused by felons, and a ‘proximate cause’ test that includes all deaths
foreseeably resulting from the felons’ acts.”165 An agency test might be
thought to require the kind of culpability—intent to wound or injure—
inherent in the concept of killing at common law. For example, in the case
of People v. Washington, the California Supreme Court overturned a robber’s
conviction for the defensive killing of his co-felon by a robbery victim.166
The court reasoned as follows:
When a killing is not committed by a robber or by his accomplice but by
his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate
robbery. It is not enough that the killing was a risk reasonably to be foreseen
and that the robbery might therefore be regarded as a proximate cause of
the killing. Section 189 requires that the felon or his accomplice commit
the killing, for if he does not, the killing is not committed to perpetrate the
felony.167
This holding required that the act causing death have a felonious motive, but
it also seemed to assume that the act causing death must be an intentional
battery.
160 See Binder, supra note 155, at 88; see also 3 JAMES FITZJAMES STEPHEN, A HISTORY OF
CRIMINAL LAW OF ENGLAND 80–81 (London, Macmillan & Co. 1883).
161 N.J. STAT. ANN. §§ 2C:11-2(a), 2C:2-3 (West 2013); 18 PA. CONS. STAT. ANN.
§§ 2501(a), 303 (West 2013); TEX. PENAL CODE ANN. §§ 19.01(a), 6.04 (West 2013).
162 GA. CODE ANN. § 16-5-1 (West 2013); N.Y. PENAL LAW § 125.00 (McKinney 2013);
OHIO REV. CODE ANN. §§ 2903.01–09 (West 2013).
163 CAL PENAL CODE § 187(a) (West 2013); FLA. STAT. ANN. § 782.04(1)(a) (West 2013).
164 MICH. COMP. LAWS ANN. § 750.316 (West 2013); N.C. GEN. STAT. ANN. § 14-17 (West
2013); VA. CODE ANN. § 18.2-30 (West 2013).
165 Binder, supra note 16, at 484.
166 People v. Washington, 402 P.2d 130 (Cal. 1965).
167 Id. at 133.
THE
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If killing means causing death directly by intentionally striking a blow, it
entails some culpability towards death. Yet if killing is conceived more
broadly, as including any conduct necessary to death, without the intervention of another voluntary act, killing does not entail any culpability. Thus,
four years after Washington, a California court upheld a conviction for felony
murder when a frightened victim died of a heart attack after a robbery, without having been struck or injured by the robbers.168 The court held that
direct causation did not require foreseeability of death and simply assumed
that causation satisfied the statutory requirement of killing, despite the
absence of any intentionally inflicted blow or injury.169
A proximate cause standard requires that death be foreseeable, thereby
requiring culpability towards death, but only at the level of negligence. This
is not enough culpability to justify capital punishment as necessary for purposes of retribution or deterrence.170 A classic example of a proximate cause
rule was the decision in the Illinois case of People v. Payne, in which a robber
who exchanged gunfire with a victim was held liable for the death of his cofelon, despite the absence of evidence to determine from whose gun the fatal
shot emanated.171 Here the defendant’s recklessness made him responsible
for the result despite the possible intervention of a victim.172 Yet a proximate
cause standard can require much less culpability. In the later Illinois case of
People v. Hickman, an unarmed burglar was found liable for murder when a
police officer shot an officer from another force investigating the same burglary, after the defendant had already fled the scene.173 Because burglaries
very rarely cause death,174 the defendant was arguably not even negligent
(and probably should not have been convicted).
Even this brief comparison shows that the act element of homicide varies
from state to state, and even from case to case. It may entail a lot of culpability, or some, or none. Depending on how it is applied by courts, a direct
causation or “agency” standard may require intent to injure, or it may not
require any culpability. A proximate cause standard, properly applied,
should require negligence towards death, but in practice sometimes it does
not. Neither standard for causation of death consistently demands recklessness or intention with respect to death. Thus, given current definitions of
homicide, conditioning capital murder on “actually killing” cannot substitute
for these culpable mental states. It cannot escape the problem of the inadvertent actual killer.
168
169
170
171
172
173
174
People v. Stamp, 82 Cal. Rptr. 598 (Cal. Ct. App. 1969).
Id. at 603.
See supra Section II.A.
People v. Payne, 194 N.E. 539 (Ill. 1935).
Id. at 543.
People v. Hickman, 319 N.E.2d 511 (Ill. 1974).
MODEL PENAL CODE § 210.2, at 38 n.96 (AM. LAW INST. 1980).
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The Reflective Reading
We have argued that to read the Enmund test mechanically permits the
execution of an inadvertent actual killer, and that this troubling result is enabled because state law provides no guarantee of an embedded culpability
when the term “killing” is used. Yet we also argue that the mechanical reading is not compelled as a matter of constitutional doctrine (later, we will
argue why it is wrong as a matter of constitutional theory).175
1.
Rereading Enmund
A reflective reading of the Enmund opinion must begin with the identities of the signatories. It included Brennan and Marshall, who consistently
viewed capital punishment as unconstitutional in all circumstances, and
Blackmun and Stevens, who late in their long careers would come to the
same conclusion.176 All four of these Justices dissented in Tison, saying:
Influential commentators and some States have approved the use of the
death penalty for persons . . . who kill others in circumstances manifesting an
extreme indifference to the value of human life. Thus an exception to the
requirement that only intentional murders be punished with death might be
made for persons who actually commit an act of homicide; Enmund, by distinguishing from the accomplice case “those who kill,” clearly reserved that
question.177
Yet they went on to insist that “[i]n Enmund, the Court explained at length
the reasons a finding of intent is a necessary prerequisite to the imposition of
the death penalty,” without confining that prerequisite, or its supporting
rationale, to accomplices.178
The author of the Enmund opinion was Justice Byron White.179 Justice
White’s opinion in Enmund must be read against the background of his concurrence in Lockett v. Ohio, striking down a death sentence for an accomplice
who drove a getaway car.180 Justice White condemned the imposition of capital punishment on an accomplice without intent to kill in terms that strongly
implied an across-the-board prohibition on executing anyone, including
actual killers, without a finding of intent to kill:
175 See infra Part V.
176 See Elisabeth Semel, Reflections on Justice John Paul Stevens’s Concurring Opinion in Baze
v. Rees: A Fifth Gregg Justice Renounces Capital Punishment, 43 U.C. DAVIS L. REV. 783, 791
n.28 (2010) (identifying the opinions in which Justices Brennan, Marshall, Blackmun, and
Stevens first renounced the constitutionality of capital punishment).
177 Tison v. Arizona, 481 U.S. 137, 169 (1987) (Brennan, J., dissenting) (footnote
omitted).
178 Id. at 172.
179 Enmund v. Florida, 458 U.S. 782, 782 (1982).
180 See generally Lockett v. Ohio, 438 U.S. 586, 621–28 (1978) (White, J., concurring in
part, dissenting in part, and concurring in the judgment).
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I agree with the contention of the petitioners . . . that it violates the Eighth
Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim.
. . . A punishment is disproportionate “if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than
the purposeless and needless imposition of pain and suffering; or (2) is
grossly out of proportion to the severity of the crime. A punishment might
fail the test on either ground.” Coker v. Georgia, 433 U.S. 584, 592 (1977)
(opinion of WHITE, J.). Because it has been extremely rare that the death
penalty has been imposed upon those who were not found to have intended
the death of the victim, the punishment of death violates both tests under
the circumstances present here.
....
. . . It is clear from recent history that the infliction of death under circumstances where there is no purpose to take life has been widely rejected as
grossly out of proportion to the seriousness of the crime.
The value of capital punishment as a deterrent to those lacking a purpose to kill is extremely attenuated. Whatever questions may be raised concerning the efficacy of the death penalty as a deterrent to intentional
murders . . . its function in deterring individuals from becoming involved in
ventures in which death may unintentionally result is even more doubtful.
. . . [T]he conclusion is unavoidable that the infliction of death upon those
who had no intent to bring about the death of the victim is not only grossly
out of proportion to the severity of the crime but also fails to contribute
significantly to acceptable or, indeed, any perceptible goals of punishment.
. . . [S]ociety has made a judgment, which has deep roots in the history of
the criminal law, distinguishing at least for purpose of the imposition of the
death penalty between the culpability of those who acted with and those who
acted without a purpose to destroy human life.181
These passages made no exception for actual killers, implying that execution
should be conditioned on intent to kill for all defendants, even those whose
actions caused death.
When we turn to Justice White’s opinion in Enmund, we find that he
identified two deficiencies in Florida’s capital punishment process:
[U]nder Florida law . . . [i]t was . . . irrelevant . . . that he did not himself kill
and was not present at the killings; also beside the point was whether he
intended that the Kerseys be killed or anticipated that lethal force would or
might be used if necessary to effectuate the robbery or a safe escape.182
At the time Enmund was decided, thirty-five states and the U.S. military
authorized the death penalty, but fifteen states, the United States, and the
District of Columbia did not.183 Justice White noted that of those states
181 Id. at 624–26 (citation omitted) (citing United States v. U.S. Gypsum Co., 438 U.S.
422 (1978)).
182 Enmund, 458 U.S. at 788.
183 Id. at 789.
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where the punishment was permitted, four did not punish felony murder
capitally and an additional eleven required either intent to kill or “a culpable
mental state . . . such as recklessness or extreme indifference to human life”
as a prerequisite to capital liability.184 Thus, thirty-two jurisdictions precluded capital punishment of inadvertent actual killers. Only one state
required actual killing, while two more required major participation, and six
more made minor participation a mitigating factor.185 Justice White added
that of Florida’s forty-four other felony murder death row defendants
(excluding Enmund), thirty-six had been found to have intended death,
while no finding had been made with respect to intent in the other eight
cases.186 Thus Justice White’s statistics supported a requirement of intent to
kill much better than they supported a requirement of actual killing. However, in defending the statistics supporting Enmund’s claim, White wrote,
Nor can these figures be discounted by attributing to petitioner the argument that “death is an unconstitutional penalty absent an intent to kill” and
observing that the statistics are incomplete with respect to intent. Petitioner’s argument is that because he did not kill, attempt to kill, and he did
not intend to kill, the death penalty is disproportionate as applied to him,
and the statistics he cites are adequately tailored to demonstrate that
juries—and perhaps prosecutors as well—consider death a disproportionate
penalty for those who fall within his category.187
This is consistent with the inference that Justice White considered execution of unintentional killers to be cruel and unusual, but reserved the question because it had not been sufficiently briefed and its resolution was not
necessary to deciding the case. In discussing the disproportionality of the
death penalty to Enmund’s crime, however, Justice White emphasized
Enmund’s lack of culpability far more than his lack of participation in the
killing:
The focus must be on his culpability . . . . It is fundamental that “causing
harm intentionally must be punished more severely than causing the same
harm unintentionally.” Enmund did not kill or intend to kill and thus his
culpability is plainly different from that of the robbers who killed; yet the
State treated them alike and attributed to Enmund the culpability of those
who killed . . . . This was impermissible under the Eighth Amendment.188
Justice White then argued that the justifying purposes of capital punishment required culpability.
In Gregg v. Georgia the opinion announcing the judgment observed that
“[t]he death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.” Unless the
death penalty when applied to those in Enmund’s position measurably contributes to one or both of these goals, it “is nothing more than the purpose184
185
186
187
188
Id.
Id.
Id.
Id.
Id.
at
at
at
at
at
789–90.
791–92.
795.
796 (footnote omitted) (citations omitted).
798 (citation omitted) (citing HART, 1st ed., supra note 68, at 162).
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less and needless imposition of pain and suffering,” and hence an
unconstitutional punishment. Coker v. Georgia, [433 U.S. 584, 592 (1977)].
We are quite unconvinced, however, that the threat that the death penalty
will be imposed for murder will measurably deter one who does not kill and
has no intention or purpose that life will be taken. Instead, it seems likely
that “capital punishment can serve as a deterrent only when murder is the
result of premeditation and deliberation,” . . . .
....
As for retribution as a justification for executing Enmund, we think this
very much depends on the degree of Enmund’s culpability—what Enmund’s
intentions, expectations, and actions were. American criminal law has long
considered a defendant’s intention—and therefore his moral guilt—to be
critical to “the degree of [his] criminal culpability,” and the Court has found
criminal penalties to be unconstitutionally excessive in the absence of intentional wrongdoing.189
Finally, contrary to the mechanical reading of Enmund, Justice White’s
conclusion was not that any felony murderer was death-eligible who killed,
attempted to kill, or intended to kill. Instead, his conclusion suggested that
Enmund’s death sentence raised two constitutional concerns: “Because the
Florida Supreme Court affirmed the death penalty in this case in the absence
of proof that Enmund killed or attempted to kill, and regardless of whether
Enmund intended or contemplated that life would be taken, we reverse the
judgment upholding the death penalty.”190 The first concern was that
Enmund had not shown the seriousness of his culpable intent by committing
conduct directly endangering the victim. The second concern was the
absence of any finding that Enmund had intended to kill or consciously
adverted to a probability of death. By expressing this additional concern in a
separate clause, Justice White suggested that the Eighth Amendment also
would not permit execution of an actual killer who had not adverted to a
probability of death.
These observations are strengthened when the petitioner’s brief and
oral argument are considered. The petitioner’s brief emphasized, as its first
of three main arguments, that Enmund had no more culpability with respect
to death than any other participant in a serious felony.191 The brief’s third
argument was that capital punishment of unintentional killing served neither
deterrence nor desert.192 At oral argument, the petitioner’s attorney, James
Liebman, implied that actual killing was inculpatory only in so far as indicating intent to kill, that fatal but unintentional shooting would not justify capi189 Id. at 798–800 (first and fifth alterations in original) (citations omitted) (first quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976); then quoting Fisher v. United States, 328
U.S. 463, 484 (1946) (Frankfurter, J., dissenting); and then quoting Mullaney v. Wilbur,
421 U.S. 684, 698 (1975)).
190 Id. at 801.
191 See Brief for Petitioner at 14–15, 24–25, 29, 32–34, 40–41, 47–48, Enmund, 458 U.S.
782 (No. 81-5321).
192 Id. at 38.
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tal punishment, and that at least recklessness should be required for actual
killers.193 One of the Justices suggested to Liebman that the jury could have
inferred intent to kill from Enmund’s participation in the robbery.194 When
Liebman denied this, the Justice interjected, “[Y]ou don’t suggest that a person has to pull the trigger himself,” to which Liebman responded, “Absolutely not, Your Honor. There can be an inference drawn from the fact that
he pulled the trigger . . . that he intended, but there could be an inference
drawn from many other factors even if he doesn’t pull the trigger.”195
Another Justice broke in to ask, “[A]ssume in this case that Enmund was the
only member of this group who entered the residence. He was armed, but
he had no intention to shoot, so he testified. A struggle ensued in which . . .
his gun went off accidentally.”196 Liebman responded, “[I]f the jury did
determine that it was pure accident, that there was no intent, then the death
penalty would be inappropriate because the jury would have thereby decided
that this person was not at the intent level of culpability, but fell way below
it.”197 Later, Liebman offered a fallback position: “Now, we think the intent
line is best line, but there is also another line that would be a subjective state
of culpability with regard to the homocide, [sic] be it recklessness, . . . some
sort of awareness of it, and that was not found in this case. It would be
enough under the model penal code. . . . But it was not found here.”198
Thus, the petitioner’s position, at least, was that actual killing in the course of
an enumerated felony was capitally punishable only if it was at least reckless.
2.
Rereading Tison
How should we best read Tison’s revision of the Enmund standard? In
approaching this question we should bear in mind that Tison was a 5-4 decision expanding the category of death-eligible accomplices recognized in
Enmund. This expansion depended on the vote of Justice White, who
authored the majority opinion in Enmund and then switched sides, joining
the Enmund dissenters, Justices O’Connor, Rehnquist, and Powell. As we
have seen, Justice White, in Lockett v. Ohio, expressed the view that deatheligibility should depend on intent to kill for all defendants. The majority in
Tison also depended on the vote of a Justice who had joined the court subsequent to Enmund: Justice Scalia. As we will see in our discussion of the 1994
case of Loving v. United States, Justice Scalia likely believed that Tison’s minimum requirement of reckless indifference to human life applied to actual
193 Transcript of Oral Argument at 21, Enmund, 458 U.S. 782 (No. 81-5321).
194 Id. at 20. The transcript does not identify the Justices.
195 Id. at 21–22. Based on the recorded voices of the Justices, the authors believe the
Justice who posed the question about inferring intent to kill from robbery was the same
one interrupting Liebman’s answer.
196 Id. at 22. Based on the recorded voices, the authors believe this was a different
Justice.
197 Id. at 23.
198 Id. at 51.
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killers.199 Without these two votes, Tison comes out the other way. Moreover, the four dissenters in Tison—Justices Brennan, Marshall, Blackmun, and
Stevens—conceded that, in a case where the defendant tortured a victim to
death or intentionally shot a robbery victim, “an exception to the requirement that only intentional murders be punished with death might be made
for persons who actually commit an act of homicide; Enmund, by distinguishing from the accomplice case ‘those who kill,’ clearly reserved that question.”200 Thus, we have at least six Justices in Tison who apparently thought
that actual killers needed to act with at least reckless indifference to human
life to be death-eligible.
Moreover, the approach of Tison indicates that the Court does not read
its own opinions literally in this context. Tison represents a major revision of
the Enmund test, a revision undertaken to reconnect that test with its underlying justifications. Recall that it was the Supreme Court in Tison that
remarked that the Enmund test lacked the nuance to produce results in keeping with its underlying justifications:
A narrow focus on the question of whether or not a given defendant
“intended to kill” . . . is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend
to, and do, kill are not criminally liable at all—those who act in self-defense
or with other justification or excuse. Other intentional homicides, though
criminal, are often felt undeserving of the death penalty—those that are the
result of provocation.201
To read its own case literally was, the Court wrote, to use a “narrow
focus” and a “highly unsatisfactory means” of achieving its ultimate purpose—identification of “the most culpable and dangerous of murderers.”
Tison itself tells us that no rigid test ought to supplant a deeper consideration
of the rationale for the rule in the first place; it therefore invites its own
further development in light of new fact patterns. We might add that this
kind of “common law” evolution of doctrine is especially appropriate in the
context of the Eighth Amendment, where the touchstone of constitutionality
is “evolving standards of decency.”202
Moreover, upon close reading, Tison’s language resists the inference
that killers are capitally punishable, regardless of culpability. As we have
noted, the opinion treats the degree of participation as significant primarily
in so far as it correlates with culpability towards death: “[T]he greater the
defendant’s participation in the felony murder, the more likely he acted with
199 See infra subsection III.B.3. Apparently Justice Rehnquist also thought Enmund
required culpability towards death for the actual killer, although, as a dissenter in Enmund,
he may not have supported this requirement. See infra text accompanying note 221.
200 Tison v. Arizona, 481 U.S. 137, 169 (1987) (Brennan, J., dissenting).
201 Id. at 157 (majority opinion).
202 Brumfield v. Cain, 135 S. Ct. 2269, 2274 (2015) (emphasis added) (quoting Atkins
v. Virginia, 536 U.S. 304, 321 (2002)).
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reckless indifference to human life.”203 On this reasoning the killer’s participation is significant as evidence—often conclusive—of reckless indifference.
Consistent with this concern for culpability with respect to death is Justice O’Connor’s emphasis on the Tisons’ presence throughout the killings
and the fact that they enabled the killings by providing the arms, flagging
down the victims, and holding them at gunpoint while their father decided
whether to kill them.204 Justice O’Connor added that “only eleven states
authorizing capital punishment forbid imposition of the death penalty even
though the defendant’s participation in the felony murder is major and the
likelihood of killing is so substantial as to raise an inference of extreme recklessness.”205 It seems clear that the participation justifying a lower standard
of culpability with respect to death was participation in the felony murder,
not participation in the felony as such. To be sure, Justice O’Connor concluded that “major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the Enmund requirement.”206 Yet the argument of the opinion only justifies the conclusion that
participation in the killing is probative. Participation in the felony is probative only in so far as the felony recklessly endangered the lives of the victims.
One of the foremost criticisms of felony murder liability is its imputation
of complicity in the killing on the basis of aiding or encouraging the felony
rather than aiding or encouraging the killing.207 It seems likely that Justice
O’Connor sought to insulate capital punishment of felony murder from this
criticism by conditioning capital felony murder liability on aiding and foreseeing the killing. Underlying her dissatisfaction with the Enmund formula
was its reliance on an unrealistically discrete category of killing. As a former
state judge she no doubt recognized that in modern homicide law, actors can
become responsible for death under a variety of different standards of causation and complicity that are not uniform across jurisdictions. Accordingly,
she treated participation in homicide as a continuum, and viewed it as significant in so far as it supplied evidence of the culpability required for murder.
Fatally shooting a victim would supply strong evidence of reckless indifference to human life, but aiding or encouraging such an act might be just as
inculpatory. None of this reasoning implies that actual killers should be executed when the “circumstances” did not so “warrant”208 by showing them to
be “among the most culpable and dangerous of murderers.”209
203 Tison, 481 U.S. at 153.
204 Id. at 151–52.
205 Id. at 154.
206 Id. at 158.
207 BINDER, supra note 33, at 213–25.
208 “Enmund . . . dealt with . . . the felony murderer who killed, attempted to kill, or
intended to kill. The Court clearly held that . . . jurisdictions that limited the death penalty
to these circumstances could continue to exact it in accordance with local law when the
circumstances warranted.” Tison, 481 U.S. at 150.
209 Id. at 157.
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In its concluding section, Tison argued that nonintentional murders
“may be among the most dangerous and inhumane of all,” and gave examples of torturers or robbers indifferent to the survival of their victims.210 Significantly, the only examples offered of defendants culpable enough to merit
capital punishment without intent to kill are actual killers. In arguing that
such killers are culpable enough to deserve death, the opinion eschews any
argument that a fatal result makes culpability irrelevant, or that a felonious
motive obviates any culpability with respect to death. Instead, the Court limited its discussion to culpable mental states of sufficient gravity to warrant
murder liability irrespective of felonious context. Thus:
This reckless indifference to the value of human life may be every bit as
shocking to the moral sense as an “intent to kill.” Indeed it is for this very
reason that the common law and modern criminal codes alike have classified
behavior such as occurred in this case along with intentional murders. See,
e.g., G. Fletcher, Rethinking Criminal Law § 6.5, pp. 447–448 (1978) (“[I]n
the common law, intentional killing is not the only basis for establishing the
most egregious form of criminal homicide . . . . For example, the Model
Penal Code treats reckless killing, ‘manifesting extreme indifference to the value of
human life,’ as equivalent to purposeful and knowing killing”).211
Moreover, the Court seemed to apply this requirement to those who
actually cause death:
[T]he reckless disregard for human life implicit in knowingly engaging in
criminal activities known to carry a grave risk of death represents a highly
culpable mental state . . . that may be taken into account in making a capital
sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.212
Finally, we note that the majority opinion made no response to the claim
by Justice Brennan in his dissent that the problem of the inadvertent actual
killer was “clearly reserved” by Enmund.213 Brennan pointed out that the
Tison majority’s discussion of unintentional killings was limited to that of
reckless actual killers. While denying that Enmund permitted execution of
non-triggermen without intent to kill, Justice Brennan conceded that
Enmund might permit execution of those who actually kill recklessly, because
the question of the culpability required of actual killers had been reserved.
Were the mechanical reading of the test such an obvious one, it would be
expected that the majority opinion would have responded to Justice Brennan’s claims. Rather than insisting that actual killing alone sufficed to justify
death-eligibility, Justice O’Connor sought to replace the rigid dichotomy of
killing or intending to kill with a test better adapted to the disparate standards of homicide liability across the different states: death-eligibility
required major participation in the conduct causing death, and reckless
indifference to human life.
210
211
212
213
Id.
Id. (alteration in original) (emphasis added).
Id. at 157–58 (emphasis added).
Id. at 169 (Brennan, J., dissenting).
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The Significance of Loving v. United States
Finally, it is unlikely that the mechanical reading was contemplated
because four members of the Court would later express skepticism at the
prospect of the execution of the inadvertent actual killer. This skepticism
was evident not in a published opinion but at the oral argument in a military
capital case (to be discussed in depth later). This oral argument took place
during the direct review of death sentence under the Uniform Code of Military Justice.214 On this review, the defendant challenged the military’s felony
murder statute as failing to rationally narrow the death-eligible class of murderers, as the President lacked the authority to prescribe the aggravating factors that purported to cure the statute’s defect.215 The Court ultimately
decided that the President did have such power, thus obviating the need to
assess the constitutionality of the statute on its own.216 What is important for
our purposes, though, is that before reaching the separation of powers question, the Court had occasion at least to consider the Eighth Amendment
question. Because the statute required no culpability with respect to the victim’s death,217 the Court was confronted with the problem of the inadvertent
actual killer. At issue was whether or not a triggerman in a felony murder
could be liable under the statute even when he possessed no intent to kill.
During oral argument, Justice Souter initially attempted to narrow the
statute’s meaning to intentional killing, presumably to avoid the difficult constitutional question that would otherwise result.218 When petitioner’s counsel pointed out that intent was not required, Chief Justice Rehnquist jumped
in, highlighting the resultant problem: “Enmund I think supports your posi214 Loving v. United States, 517 U.S. 748 (1996).
215 Id. at 759.
216 Id. at 770.
217 10 U.S.C. § 918 (1982). The statute provided:
Any person subject to this chapter who, without justification or excuse,
unlawfully kills a human being, when he—
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to others and evinces
a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of burglary,
sodomy, rape . . . , robbery, or aggravated arson;
is guilty of murder, and shall suffer such punishment as a court-martial may
direct, except that if found guilty under clause (1) or (4), he shall suffer death or
imprisonment for life as a court-martial may direct.
Id.
218 Transcript of Oral Argument at 7–8, Loving, 517 U.S. 748 (No. 94-1966), https://
apps.oyez.org/player/#/rehnquist10/oral_argument_audio/20586 (“[I]t doesn’t dispense
with a mens rea requirement, doesn’t it [sic]?” he asked. “Because you still have the mens
rea requirement necessary for murder.” Petitioner’s counsel corrected him that “murder”
was not an element, and Justice Souter responded, “[O]h, it says . . . merely says kills.”
(alteration in original)).
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tion there, that you can’t automatically transpose the mens rea for a felony to
a killing and still have capital punishment for it.”219
While questioning the Deputy Solicitor General, Justices Scalia and
Breyer also raised the problem. Justice Scalia asked if there was an intent
requirement in the statute, since “[y]ou can perpetrate the killing without
intending to kill.”220 The Deputy Solicitor General responded that there was
none, to which Justice Scalia replied, “I guess that means [the statute] is . . .
constitutionally invalid” for the purposes of “the death penalty.”221 Justice
Breyer then said he was “with Justice Scalia, somewhat confused because . . .
[the statute] does permit conviction of a person engaged in robbery who,
let’s say, negligently . . . kills someone else,” and that therefore the death
penalty could be imposed for merely negligent conduct.222
Later, Justice Scalia again returned to the issue. He asked the Deputy
Solicitor General if “[a]ccidental killing would be enough to impose the
death penalty under [the statute].”223 He introduced a hypothetical: “Suppose I drop a gun during a holdup. The guns [sic] goes off and kills somebody. Is that enough to satisfy the requirements of [the statute]?”224
Significantly, the Deputy Solicitor General then conceded that capital punishment for that conduct would violate the Eighth Amendment: “That . . . I
believe that would be sufficient to satisfy [statutory liability]. It would not be
sufficient to satisfy this Court’s Eighth Amendment jurisprudence.”225 Justice Souter then interrupted, rejecting the Deputy Solicitor General’s assertion that any constitutional problem was solved if the defendant were the
“triggerman,” since “[t]he triggerman can do it accidentally.”226 In such a
case, the Deputy Solicitor General agreed that that scenario presented a “further” constitutional question.227
While all this language is nothing more than oral argument questioning,
it cannot be ignored when attempting to assess whether the mechanical reading was the anticipated one. First, it is important to note that the government conceded that accidental killing was insufficient for capital
punishment. Next, the Justices’ questions show that multiple members of the
Court do not (and some of those on the Court for Tison “did” not) see themselves as authorizing the rigid mechanical test. Dicta in the Court’s opinion
implied an understanding of Enmund and Tison as requiring culpability, even
for killers:
[W]e agree with Loving . . . that aggravating factors are necessary to the
constitutional validity of the military capital punishment scheme as now
219
220
221
222
223
224
225
226
227
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
at 8.
at 43.
at 44.
at 45.
at 28.
at 29.
(alteration in original).
at 30.
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enacted. Article 118 authorizes the death penalty for but two of the four
types of murder specified: premeditated and felony murder are punishable
by death, whereas intentional murder without premeditation and murder
resulting from wanton and dangerous conduct are not. The statute’s selection of the two types of murder for the death penalty, however, does not
narrow the death-eligible class in a way consistent with our cases. Article
118(4) by its terms permits death to be imposed for felony murder even if
the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be
imposed in those circumstances. Enmund v. Florida, 458 U.S. 782, 801
(1982). As a result, additional aggravating factors establishing a higher culpability are necessary to save Article 118.228
C.
The Best Conclusion: An Open Question
We have discussed one tempting way of reading the Enmund-Tison test—
the mechanical reading—and explained what such a reading means in terms
of applied results. We showed that reading each clause of the test as an independently sufficent path to constitutionality yields the problem of capital
punishment of the inadvertent “actual killer.” We noted the theoretical
problem with reading the test this way (it ignores culpability) and showed
how this problem arose because over time legal conceptions of “killing” have
changed so that the concept no longer entails the culpability it once did. We
reviewed the leading contemporary tests for causation of death in the course
of a felony—the agency and proximate cause tests—and showed that neither
ensures a sufficient level of culpability to qualify felony murderers for capital
punishment. Finally, we turned to an explication of why the mechanical
reading is not compelled as a matter of standard doctrinal interpretation, as
evidenced by close readings of Enmund and Tison, the latter case’s unabashed
modification of the former, and statements made at oral argument in Loving.
If our critique of the mechanical reading is sound, however, then it must
be replaced with something else. What did the Court actually mean when it
crafted its test? Our position is that—at least with respect to the “actual
killer” category and the problem of the inadvertent actual killer—the Court
did not resolve the issue. It was not directly before the Court in Enmund and
Tison. It seems likely that when both Enmund and Tison were decided, a
majority of the Justices thought that execution of inadvertent actual killers
would not serve the required purposes of retribution and deterrence. Yet
because Eighth Amendment proportionality had come to depend on evolving standards of decency, the Justices probably did not assume that their own
views were controlling. Moreover, in an era when public support for capital
punishment had fluctuated dramatically, the Justices probably thought it
imprudent to decide this question in the abstract.
The Justices likely assumed that killings in the course of felonies would
almost always be armed attacks manifesting recklessness. Inadvertent killings
would be rare, and prosecutors would seldom seek—and juries rarely
228 Loving v. United States, 517 U.S. 748, 755–56 (1996) (citations omitted).
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impose—capital sentences when they did occur. If a significant sector of the
public believed that inadvertent killers merited capital punishment, such
sentences would be imposed and challenged and come before the Court. If
not, the resulting silence would testify more convincingly than any judicial
rhetoric to the indecency of such a sentence, should one ever be imposed.
In short, they left the question of the inadvertent killer open, in the expectation that the convergence of usage with principle would answer it in due
course.
IV.
THE PREVAILING INTERPRETATION IN THE LOWER COURTS:
THE MECHANICAL INTERPRETATION
We have argued that it is an open question whether a perpetrator of
felony murder can be executed without a finding of at least reckless indifference to human life. Yet most state courts that have addressed the question
have assumed that the Eighth Amendment permits such executions and,
while the few federal circuit courts to consider the question are divided, the
trend has been away from requiring culpability. Decisions denying that the
Eighth Amendment conditions execution of killers on culpability have
almost uniformly employed the mechanical reading of Enmund. A striking
feature of these cases is that in almost all of them, the defendant is highly
culpable. Thus, the courts could easily have affirmed most of these death
sentences as satisfying the culpability requirements of Enmund and Tison, but
instead they denied that the Eighth Amendment requires culpability at all.229
At the same time, some recent cases have presented scenarios of weaponless
killings of vulnerable victims that raise real questions about whether the
defendant adverted to the risk of death. These cases illustrate that the prevailing mechanical reading of Enmund and Tison creates a risk of executing
an inadvertent killer that the Supreme Court should not disregard.
In what follows, we will survey every case in the lower courts that has
grappled with the inadvertent actual killer problem. We will begin by discussing the small number of courts that apply what we call the “reflective reading,” which demands culpability even for an actual killer. However, we will
then see that the weight of authority on this question skews heavily in favor of
the mechanical reading. Opinions employing the mechanical reading break
out into three broad categories: most courts say Enmund and Tison permit
the actual killer’s execution, some others say these cases do not apply to
229 The fact scenarios in these cases support what we believe to be Justice White’s
assumptions: that perpetrators of felony murder sentenced to death would be “triggermen,” would be wielding deadly weapons, and would almost always be at least reckless.
This pattern strongly suggests that, despite claims by courts that the Eighth Amendment
permits execution of inadvertent killers, inadvertent killers are almost never being sentenced to death. If so, conditioning capital punishment on at least recklessness is not only
consistent with Eighth Amendment principles requiring that execution serve retribution
and deterrence. Requiring recklessness may also be consistent with evolving standards of
decency as reflected in the discretionary decisions of prosecutors and sentencers.
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actual killers, and a few say that we should rely on political process checks
(and not legal rules) to prevent the execution of inadvertent killers.
In discussing the cases below, we should clarify up front the spirit in
which we craft our critique. That the question of an inadvertent actual killer
is not easily resolvable from a clear reading of Supreme Court cases shows
that this is no simple question. Indeed, as our discussion of California’s
experience will show, conscientious judges can disagree sharply. What we
find troubling is not that a court can arrive at the wrong judgment in a hard
case, but that so many courts have avoided exercising judgment altogether,
and on a question of life and death.
A.
Reflective Reading
A small number of courts recognize the problem of the inadvertent
actual killer, as well as the ambiguity of Enmund and Tison on that question,
and take into consideration the underlying justifications of the Eighth
Amendment. This interpretive approach leads these courts to demand that
even an actual killer act with culpability with respect to the victim’s death.
Shortly after the Enmund decision, the California Supreme Court was
called upon to interpret its meaning in Carlos v. Superior Court.230 In this
case, the court construed a popular initiative imposing capital punishment
for felony murder to require intent to kill for “all defendants—actual killers
and accomplices alike.”231 The court in Carlos was uncommonly astute in
recognizing the problem of the inadvertent actual killer, even though the
defendant in the case was merely an accomplice.232 “[The statute’s] application to an actual killer who did not intend to kill would present a close and
unsettled constitutional question.”233 The court considered at length the
discussion in Enmund of culpability—both as a doctrinal requirement and as
a theoretical justification for capital punishment. The court perceptively
noted, “The reasoning of [Enmund] . . . raises the question whether the
death penalty can be imposed on anyone who did not intend or contemplate
a killing, even the actual killer,” and stated that with respect to deterrence
and retribution “there is no basis to distinguish the killer from his accomplice” if both lacked culpability.234 It called the inadvertent actual killer
problem a “substantial and yet unsettled constitutional issue,”235 and it concluded that because any test that allowed for execution of an unintentional
230 Carlos v. Superior Court, 672 P.2d 862, 875 (Cal. 1983).
231 Id. at 877.
232 Id. at 875 (“Defendant did not kill, did not attempt to kill, and was not present at
the time of the killing. Nothing in the record suggests that he intended the death of
Jennifer Slagle or any other person. The most that could be said concerning defendant’s
culpability for Jennifer’s death is that defendant knew his partner was armed, and may
have contemplated that in an unexpected confrontation Perez would shoot and someone
might be killed.”).
233 Id. at 873.
234 Id. at 875.
235 Id.
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killing did not advance the underlying justifications of punishment (and did
not rationally narrow the class of death-eligible defendants), it would be
unconstitutional.236
Also shortly after Enmund, the Eleventh Circuit decided Adams v. Wainwright,237 which involved the following facts: “In the course of a robbery at
the victim’s home, Adams beat [the victim] senseless with a firepoker.”238
The victim languished for a day and then died.239 In sentencing Adams to
death, the judge found the aggravating circumstance that the killing was
“especially heinous, atrocious, or cruel,” because the defendant beat the victim “past the point of submission and until his body was grossly mangled.”240
Nevertheless, the defendant challenged his resultant death sentence for felony murder because there was no specific finding of intent to kill, as
required by Enmund.241 The court, however, distinguished Enmund not only
on the ground that Adams actually killed, but also that he was more culpable:
The Supreme Court held the death penalty disproportionate to Enmund’s
culpability, reasoning that he personally “did not kill or attempt to kill” or
have “any intention of participating in or facilitating a murder.” Here
Adams personally killed his victim, savagely beating him to death. Adams
acted alone. He is fully culpable for the murder.242
Thus, while the Florida courts had made no explicit finding of culpability, the Eleventh Circuit did test the sentence against the demands of
Enmund.
Following Wainwright in 1983 was Ross v. Hopper, another Eleventh Circuit case.243 During a home invasion, the defendant apparently shot and
killed a police officer who answered a call from the house.244 Ross was convicted of felony murder, without any specific finding that he had killed,
attempted to kill, or intended to kill.245 This was the basis of his Enmund
challenge. The court rejected this, noting the culpability of the defendant:
[T]he individual culpability of appellant Ross is significantly greater than the
culpability of the defendant in Enmund. There is sufficient evidence in the
record to support a finding that Ross not only contemplated that lethal force
236 Id. at 876 (“We doubt that a screening device which included those who killed accidentally, while excluding some intentional killers, would meet the United States Supreme
Court’s test.”)
237 709 F.2d 1443 (11th Cir. 1983).
238 Id. at 1445.
239 Id.
240 Id. at 1447 (quoting Adams v. State, 341 So. 2d 765, 769 (Fla. 1977)).
241 Id. at 1446.
242 Id. at 1447 (citation omitted) (quoting Enmund v. Florida, 458 U.S. 782, 798
(1982)).
243 716 F.2d 1528 (11th Cir. 1983).
244 Id. at 1531.
245 Id. at 1532.
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might be employed during the robbery and hence possessed an intent to
kill, but that he actually committed the murder himself.246
While the court noted that the defendant “actually killed” the victim, it
still examined the “individual culpability of the defendant, as did the
Supreme Court in Enmund.”247
In the year following Ross, the Wyoming Supreme Court decided Engberg
v. State—another example (albeit a complicated one) of the reflective reading.248 In Engberg, the defendant intentionally shot a robbery victim and the
victim died.249 The defendant argued that a finding of intent to kill was
required under Enmund. The court distinguished Enmund as inapplicable to
actual killers and non-accomplices, thus initially staking out what might seem
like a mechanical interpretation.250 However, immediately after this, the
court adverted to general Eighth Amendment principles and assessed the
defendant’s culpability anyway, even citing to Enmund:
In giving individualized consideration to the culpability of Engberg, following the mandates in Woodson v. North Carolina, 428 U.S. 280 . . . (1976);
Lockett v. Ohio, 438 U.S. 586 . . . (1978); and Enmund v. Florida, [458 U.S. 782
(1982)], Engberg’s eligibility for capital punishment is sustained on the basis
of his personal responsibility and moral guilt. His conduct satisfies the “two
principal social purposes” of the death penalty “retribution and deterrence
of capital crimes by prospective offenders.” [Enmund, 458 U.S. at 798], quoting Gregg v. Georgia, 428 U.S. 153 . . . (1976).251
In Engberg, then, the court denied that Enmund’s requirement of intent to kill
applied to a robber who intentionally and fatally shot a victim, but it nevertheless applied a requirement of culpability drawn from Enmund and other
Eighth Amendment cases.
246 Id. at 1532–33 (“Ross was seen standing in the dining room armed with Stanford’s
.32 caliber pistol seconds before the shooting. Witnesses testified that two rounds from
Meredith’s shotgun were fired, followed immediately by a pistol shot. Meredith’s body was
found in the adjoining kitchen shot through the chest with a single bullet at close range.
Ballistics tests later revealed that the bullet was fired from the same .32 caliber pistol seen
in Ross’ possession seconds before the shooting. Shortly thereafter Ross told his brother
Theodore that he had shot a policeman and that the gun of his accomplice had misfired.
He also told another witness that he thought he had killed a policeman.” (citing Ross v.
State, 211 S.E.2d 356, 358 (Ga. 1974))).
247 Id. at 1533.
248 686 P.2d 541 (Wyo. 1984).
249 Id. at 544.
250 Id. at 551 (“The Supreme Court of the United States there held that a capital sentence could not be imposed upon an accomplice convicted under a felony murder theory
if the accomplice ‘does not himself kill, attempt to kill, or intend that a killing take place
or that lethal force will be employed.’ Engberg in this instance did kill himself, and he
would qualify for capital punishment under the holding in Enmund v. Florida. Furthermore, Enmund v. Florida is an accomplice case, not a case involving a principal. In our view
it has no application to a case in which the defendant is the principal who accomplished
the fatal act.” (citations omitted) (first citing Enmund v. Florida, 458 U.S. 782, 795–99,
(1982); and then citing Osborn v. State, 672 P.2d 777 (Wyo. 1983))).
251 Id.
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In 1985, another jurisdiction approached the actual killer question
reflectively: Delaware. In Whalen v. State, the defendant raped a very elderly
victim and strangled her to death.252 He argued that the Eighth Amendment required proof of intent to kill (recklessness had already been found, as
this was required for guilt).253 The court distinguished Enmund because it
did not involve an actual killer; however, this was not because of some
mechanical interpretation given to the words “actually killed”— instead the
court assumed that actual killers almost always have culpability, and therefore
their execution serves the purposes of punishment.254 In discussing retribution, the court said: “From Whalen’s actions there can be little doubt of his
intentions and expectations. His culpability for the death that resulted here
is far different from Enmund’s.”255 Since the facts here clearly evidenced
intent to kill, there was no problem under Enmund:
[T]he death penalty is not a grossly disproportionate and excessive punishment for a defendant found guilty of felony murder, who actually killed his
victim under the circumstances present here. We note that such a conclusion
comports with the requirement that a defendant’s punishment “be tailored
to his personal responsibility and moral guilt.”256
The court’s position was not that actual killing obviates inquiry into culpability—instead, it was that the facts of an actual killing often provide evidence of
culpability.
Another 1985 case, this one from the Fifth Circuit, employed a similarly
reflective reading of Enmund.257 In Kirkpatrick v. Blackburn, the defendant
stabbed a robbery victim, inflicting a mortal wound, but before the victim
could bleed to death he was shot fatally in the head (by a co-felon).258 The
defendant argued that a finding of intent was required but that the jury in his
case was charged to find either specific intent to kill or intent to “inflict great
bodily harm.”259 Essentially, he claimed that his knife attack was only committed with intent to “inflict great bodily harm,” while the co-felon’s gunshot
was the actual cause of death. Tellingly, the court rejected any distinction
between killers and those who culpably aid in the killing: both were principals under Louisiana law.260 The mental element of murder in Louisiana
was intent to inflict great bodily harm, which both assailants exhibited. As for
causal responsibility, it is true that where one assailant inflicts a mortal
wound and a second independent assailant inflicts an immediately lethal
wound, the subsequent independent act breaks the chain of causal responsi252 492 A.2d 552 (Del. 1985).
253 Id. at 563.
254 Id. at 564–65.
255 Id. at 564.
256 Id. at 565 (emphasis added) (quoting Enmund v. Florida, 458 U.S. 782, 801
(1982)).
257 Kirkpatrick v. Blackburn, 777 F.2d 272 (5th Cir. 1985).
258 Id. at 275.
259 Id. at 287.
260 Id. at 287–88.
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bility.261 But where two assailants collaborate in an attack with deadly weapons, each owns the other’s actions and both are causally responsible. Thus,
because Kirkpatrick was a participant in the fatal assault, he was causally
responsible for the death:
When a defendant personally intends to inflict great bodily harm and succeeds in producing death, his personal involvement and individual culpability is sufficiently established that the capital sentence is not cruel and
unusual.
. . . The knife used in the assault was buried to the hilt in the victim’s chest
and the victim had severe abdominal wounds. Both wounds were potentially
lethal. The gunshot was but the coup de grace and Kirkpatrick cannot be
exonerated even if he did not pull the pistol trigger.262
Anticipating Tison, this case illustrates that when an accomplice in a felony
(robbery, in this case) is also an accomplice in the killing, the distinction
between accomplice and actual killer is unhelpful. The only question that
should matter for Eighth Amendment purposes is whether the defendant is
sufficiently culpable. The court concluded that Kirkpatrick’s capital sentence satisfied Enmund—not because he was causally responsible, but
because he was sufficiently culpable. He did “intend . . . that lethal force
would be employed,”263 indeed he intentionally used it264 and he “contemplated that life would be taken.”265 In saying that an intent to inflict great
bodily harm was a sufficient level of culpability for a felony murderer who
killed or was a principal in the killing,266 the court implied that Enmund was
satisfied by a mental state of recklessness with respect to death for defendants
causally responsible for the death, since great bodily harm poses an obvious
danger of death.
A 1992 Illinois case, People v. Ramey, also represents a reflective reading
of Enmund.267 In Ramey the defendant was convicted of felony murder and
sentenced to death when he fatally stabbed a victim during a home invasion
robbery.268 His death sentence was overturned by the Illinois Supreme
Court, though, for the court’s failure to instruct the jury to find intent to
kill.269 Although the defendant was himself the killer, the court cited
Enmund, reasoning that:
261 BINDER, supra note 27, at 208.
262 Kirkpatrick, 777 F.2d at 288.
263 Enmund, 458 U.S. at 797.
264 Kirkpatrick, 777 F.2d at 288.
265 Enmund, 458 U.S. at 801.
266 Id. The Court’s complicated formulation was: “When the defendant himself acts
with the intention of inflicting great bodily harm and either killed the victim or was a
principal in his killing and was engaged in or was a principal in the commission of robbery,
he has acted with personal culpability.” Id. at 287–88.
267 603 N.E.2d 519 (Ill. 1992).
268 Id. at 522.
269 Id. at 540.
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“A certain degree of culpable conduct is necessary, under the Federal
Constitution, to warrant imposition of the death penalty . . . .” An essential
element which the State was required to prove in order to establish the existence of the sixth aggravating factor—a culpable mental state—was not
included in the instruction to the jury.270
Here, the court interpreted Enmund to mean that culpability with respect to
death is required—even for an actual killer.271
The 1996 Eighth Circuit case, Reeves v. Hopkins,272 discussed above as the
precursor to the Supreme Court case of Hopkins v. Reeves,273 also employed a
reflective reading of Enmund and Tison. In Reeves, the defendant—in an
alcohol- and peyote-induced haze—stabbed one victim seven times with a
kitchen knife, and also stabbed a second victim.274 The defendant argued
that intent to kill was required, and the court agreed:
[T]he death penalty cannot be imposed on a defendant without a showing of
some culpability with respect to the killing itself. Enmund v. Florida, 458 U.S.
782, 801 . . . (1982). Before a state can impose the death penalty, there must
be a showing of both major participation in the killing and reckless indifference to human life. Tison v. Arizona, 481 U.S. 137, 158 . . . (1987). Enmund
and Tison are thus independent constitutional requirements of the mental
culpability a state must prove if it is to impose a death sentence.275
Thus, the court concluded that the combination of Enmund and Tison
implied that a killer must act with at least reckless indifference to the victim’s
death to be capitally punished. The court seemed attuned to the underlying
purposes of the Eighth Amendment in promulgating this interpretation, and
noted that “the facts of this case . . . indicate the need for particular care that
Reeves’s ‘punishment . . . be tailored to his personal responsibility and moral
guilt.’ ”276
Perhaps most emblematic of the reflective approach to the inadvertent
killer problem is a 1998 decision of the U.S. Court of Appeals for the Armed
Forces. The case at issue, Loving v. Hart,277 was a collateral attack on the
death sentence upheld by the Supreme Court in the previously discussed
Loving v. United States.278 It concerned the military’s felony murder offense:
Any person . . . who . . . unlawfully kills a human being [while] . . .
engaged in the perpetration or attempted perpetration of [a predicate fel270 Id. at 539 (citation omitted) (quoting People v. Jimerson, 535 N.E.2d 889, 905 (Ill.
1989)).
271 Id.
272 Reeves v. Hopkins, 102 F.3d 977, 978 (8th Cir. 1996).
273 See supra subection II.B.4; see also Hopkins v. Reeves, 524 U.S. 88, 99–100 (1998)
(overturning the lower court decision because it read Enmund and Tison as affecting guiltstage liability for felony murder).
274 Reeves, 102 F.3d at 978.
275 Id. at 984.
276 Id. at 985 (second alteration in original) (quoting Enmund v. Florida, 458 U.S. 782,
801 (1982)).
277 47 M.J. 438 (C.A.A.F. 1998).
278 517 U.S. 748 (1996); see supra subsection III.B.3.
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ony] . . . is guilty of murder, and . . . shall suffer death or imprisonment for
life as a court-martial may direct.279
This provision appears to permit the death penalty for felony murder
even without culpability with respect to the death. The claim in Loving v.
Hart was that one of the aggravating factors—that the offender be the “actual
perpetrator of the killing”—was unconstitutional, as it required no finding of
intent to kill or recklessness.280 The facts of Loving’s crime clearly evidenced
an intent to kill—he entered a taxi, placed a pistol to the driver’s head, and
shot the driver fatally after he was unable to produce money—but Loving
contended that the lack of an intent requirement made the aggravator
facially unconstitutional.281
In considering this argument, the court of appeals directly addressed the
constitutional problem of the inadvertent actual killer, and recognized that
the Supreme Court had not clearly resolved the question: “Neither Enmund
nor Tison involved an actual killer. Thus, left unanswered after Enmund and
Tison is the question whether a person who ‘actually killed’ may be sentenced
to death absent a finding that the person intended to kill.”282 The court
took seriously the Justices’ questions at the oral argument in Loving v. United
States, especially Justice Scalia’s skepticism,283 and also noted Justice White’s
earlier conclusion that “it violates the Eighth Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to
cause the death of the victim.”284 These data points indicated to the court of
appeals that “when Enmund and Tison were decided, a majority of the
Supreme Court was unwilling to affirm a death sentence for felony murder
unless it was supported by a finding of culpability based on an intentional
killing or substantial participation in a felony combined with reckless indifference to human life.”285 The court concluded that “the phrase, ‘actually
killed,’ as used in Enmund and Tison, must be construed to mean a person
who intentionally kills, or substantially participates in a felony and exhibits
reckless indifference to human life.”286
The court found anomalous the fact that the military’s murder statute
made felony murder death-eligible, but not unpremeditated intentional
murder:287
This . . . would allow the death penalty for the person who unintentionally
kills by firing through the ceiling during a robbery in an effort to scare the
victim or someone whose intended victim dies of a heart attack during a
279 Loving, 517 U.S. at 753–54 (quoting 10 U.S.C. § 918 (1982)).
280 Loving, 47 M.J. at 441.
281 Id.
282 Id. at 443 (citation omitted).
283 Id.; see supra notes 208–13 and accompanying text.
284 Loving, 47 M.J. at 443 (quoting Lockett v. Ohio, 438 U.S. 586, 624 (1978) (White, J.,
concurring in part, dissenting in part, and concurring in the judgment)).
285 Id.
286 Id. (citation omitted).
287 See id. at 444.
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robbery, but it would not permit the death penalty for a person who, without
premeditation, intentionally kills.288
And as so interpreted, the statute would violate the constitutional requirement that the class of death-eligible offenders be narrowed in the right way,
since “there [must be] a rational connection between the level of culpability
and the narrowing process. In short, only the most culpable should be death
eligible.”289
Loving v. Hart represents the best effort by a lower court to address the
conundrum of the inadvertent actual killer—not only to grapple with the
plain language of the Enmund-Tison line of cases, but also to square the application of their test with its underlying justifications. For in felony murder
cases, the court wrote, “the culpability requirement is part and parcel of the
narrowing process.”290
B.
Mechanical Reading: Actual Killing as Independently Sufficient
Under Enmund and Tison
While the few courts discussed above interpreted the Enmund-Tison test
in a reflective way, every other court has done so mechanically. The first
category of these mechanical readings involves cases holding that the test is
satisfied by even an inadvertent actual killer. Courts employing this interpretation simply take the “or” in the test at face value, setting up the independently sufficient category of “actual killer,” the plain meaning of which calls
for no assessment of culpability. This approach presumes that Enmund and
Tison ruled that the Eighth Amendment permits execution of all killers as
proportionate, and thereby places those cases in contradiction to other decisions like Gregg, Lockett, Zant, and Roper that condition proportionality on
careful consideration of culpability. It reduces Enmund and Tison to formulaic rules, rather than considering the Eighth Amendment principles that
inform their reasoning.
The first court to employ such a mechanical reading was the high court
in South Carolina in 1982 (the same year Enmund was decided).291 In State
v. Koon, the defendant kidnapped and strangled the victim to death.292 The
defendant argued to the state supreme court that Enmund required intent to
kill, but this was quickly dismissed by the court:
Enmund held that the Eighth and Fourteenth Amendments prohibit imposing the death penalty upon one who aids and abets in a felony murder but
who does not himself kill, attempt to kill, or intend to kill the victim.
Because appellant admitted he killed the victim, Enmund is not dispositive
here.293
288 Id.
289 Id.
290 Id.
291 See State v. Koon, 298 S.E.2d 769 (S.C. 1982).
292 State v. Koon, 328 S.E.2d 625 (S.C. 1985).
293 Koon, 298 S.E.2d at 774.
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While there was ample evidence of intent to kill, and of recklessness and
depraved indifference, the court chose instead to find that Enmund was satisfied simply because the defendant “killed the victim.”294
The next representation of this version of the mechanical reading came
the year after Enmund in 1983, with the Alabama case Ex parte Dobard.295 In
Dobard, the defendant shot a police officer at close range during a traffic stop
while fleeing a robbery.296 He raised an Enmund claim, which the court construed to mean that the death sentence was prohibited where “no evidence
was offered to show that the defendant actually killed or intended to kill
anyone.”297 The court dismissed this in only two sentences: “Overwhelming
evidence of record shows that Dobard pulled the trigger, firing the shots that
killed Officer Sudduth. Consequently, we find no merit to petitioner’s contention that Enmund . . . precludes imposition of the death penalty in this
case.”298 Pulling the trigger and firing the shots—actually killing—is alone
enough, and consideration of the triggerman’s culpability becomes irrelevant. The “or” between “actually killed” and “intended to kill” is
determinative.
California, too, has adopted such a reading of Enmund and Tison. California earlier employed a reflective reading (in dicta) in Carlos v. Superior
Court,299 but this was abandoned for a mechanical reading only four years
later (shortly after Tison). The California Supreme Court overruled Carlos in
People v. Anderson,300 where Justice Mosk wrote that “intent to kill is not an
element of the felony-murder special circumstance; but when the defendant
is an aider and abetter rather than the actual killer, intent must be
proved.”301 The court noted that its Carlos opinion was in accord with academic commentaries interpreting Enmund, as well as with Justice White’s
statement in Lockett that capital punishment requires “conscious purpose.”302
Yet Justice Mosk concluded that the decisions in Cabana and Tison showed
these interpretations to have been mistaken.303
First, the following pronouncement in Cabana seemed to hold special
weight for Justice Mosk: “If a person sentenced to death in fact killed,
attempted to kill, or intended to kill, the Eighth Amendment is not violated
by his or her execution.”304 Justice Mosk wrote, “In these words the court
294 Id.
295 Ex parte Dobard, 435 So. 2d 1351 (Ala. 1983).
296 Id. at 1353.
297 Id. at 1357 (citation omitted).
298 Id. (citation omitted).
299 672 P.2d 862 (Cal. 1983). This was in dicta (which has been discussed above), since
Carlos involved an accomplice, and not an actual killer.
300 742 P.2d 1306 (Cal. 1987).
301 Id. at 1331.
302 Id. at 1326.
303 See id. at 1326–27.
304 Id. at 1326 (alteration in original) (emphasis omitted) (quoting Cabana v. Bullock,
474 U.S. 376, 386 (1986), abrogated by Pope v. Illinois, 481 U.S. 497 (1987)).
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declared that the Eighth Amendment did not require intent to kill.”305 It is
true that this reformulation makes explicit the negative pregnant implicit in
Enmund’s holding that the Eighth Amendment forbids execution of one who
has not killed, attempted to kill, nor intended to kill. Yet it does not reveal
whether in this context, “killed” should be read as excluding “attempted to
kill” and “intended to kill,” or as including them.
Justice Mosk also read Tison as “impliedly declar[ing] its disagreement
with our reading of Enmund.”306 Why? Because the Tison Court wrote that
“the California Supreme Court in [Carlos] construed its capital murder statute to require a finding of intent to kill,” but “only did so in light of perceived federal constitutional limitations stemming from our then recent
decision in Enmund.”307 For the California court in Anderson, the word “perceived” must have been pejorative—if “perceived,” then not “real.” Even
accepting that “perceived” means “misperceived,” the incorrect perception
the Supreme Court was alluding to was that Enmund required intent to kill as
a constitutional floor—the whole point of Tison was to lower that floor to a
baseline of recklessness. Anderson reads Tison’s implication that intent is not
necessary to mean that no culpability is necessary, but it does so only by ignoring that case’s larger holding.
The Anderson rule remains law, but the California Supreme Court did
discuss the rule in light of new Supreme Court caselaw in 2013. In People v.
Contreras, the defendant killed a convenience store clerk with a shotgun during a robbery. Under the Anderson rule no finding of intent to kill was
required.308 The defendant raised the same challenge made years before in
Anderson, and the court rejected it by retreating to the standard form of the
mechanical reading:
Enmund’s limits on death eligibility and sentencing are “categorical.” When
such rules are stated in terms of the circumstances under which capital punishment is allowed, no constitutional violation occurs where the defendant
“in fact killed, attempted to kill, or intended to kill.”
Accordingly, in the context of first degree felony murder, we have not
conditioned capital punishment upon an intent to kill for actual killers.309
It may be true that the Court in Cabana viewed the Enmund rule as establishing a category of defendants who “may not be sentenced to death.”310 It
does not follow that it thereby established three independent categories of
defendants—including nonculpable killers—who may be sentenced to death
with “no constitutional violation.”
The mechanical interpretation evident in the Anderson case is also present in various Oklahoma decisions. Oklahoma has had several cases that
305 Id. at 1327.
306 Id.
307 Tison v. Arizona, 481 U.S. 137, 153 n.8 (1987).
308 People v. Contreras, 314 P.3d 450, 457 (Cal. 2013).
309 Id. at 480 (citations omitted) (quoting Cabana, 474 U.S. at 386, abrogated by Pope, 481
U.S. 497).
310 Cabana, 474 U.S. at 386.
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stemmed from a child abuse murder statute that functions similarly to a felony murder rule.311 The offense reads as follows: “A person commits murder
in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said
person.”312
In Fairchild v. State,313 the court employed the mechanical reading to
hold that this statute requires no intent for an actual killer. The Oklahoma
Court of Criminal Appeals described the facts succinctly: “Three-year-old
Adam Broomhall, who weighed 24 pounds, died as a result of brain damage
caused when he was thrown against the vertical surface of the folded-down
wing of a drop-leaf table by his mother’s live-in boyfriend, Richard Stephen
Fairchild.”314 The autopsy revealed evidence of twenty-six separate blows.315
Fairchild challenged his death sentence in part by arguing that the child
abuse murder statute was unconstitutional—that “Tison . . . establishes the
least culpable mental state sufficient for death eligibility as [recklessness].”316
The court, however, quickly distinguished Tison. “Tison is a felony-murder
case in which the defendant himself did not kill. This Court has found Tison
does not apply to a defendant who, by his own hand, does kill.”317 Moreover,
the case that does “apply” to an actual killer, Enmund, finds that category of
cases to be constitutional: “This holding is consistent with the Supreme
Court’s holding in Enmund that the Eighth Amendment ‘requires that he
himself [a death-sentenced defendant] have actually killed, attempted to kill,
or intended that lethal force be used.’ ”318 Again, the “or” does all the work,
and “actually killed” is read to mean simply causing death.319
Next, consider the Tennessee case State v. Godsey.320 In Godsey, the
defendant was convicted of felony murder with a predicate felony of aggravated child abuse, after he threw a seven-month old infant onto a tile floor,
causing a brain injury that eventually led to death.321 The defendant was
charged with felony murder predicated on aggravated child abuse.322 He
311 See, e.g., Abshier v. State, 28 P.3d 579 (Okla. Crim. App. 2001), overruled on other
grounds by Jones v. State, 134 P.3d 150 (Okla. Crim. App. 2006); Fairchild v. State, 998 P.2d
611 (Okla. Crim. App. 1999), as corrected on denial of reh’g (May 11, 2000).
312 OKLA. STAT. tit. 21, § 701.7(C) (2016).
313 Fairchild, 998 P.2d at 611.
314 Id. at 615.
315 Id. at 616.
316 Id. at 630 (citation omitted).
317 Id. (citing Wisdom v. State, 918 P.2d 384, 395 (Okla. Crim. App. 1996)).
318 Id. (alteration in original) (quoting Cabana v. Bullock, 474 U.S. 376, 390 (1986),
abrogated by Pope v. Illinois, 481 U.S. 497 (1987)).
319 However, the acts and causal process leading to death were clearly established, and
the prolonged, escalating violence clearly shows recklessness and depraved indifference to
human life. See id. at 616. Had the court accepted the applicability of Tison to actual
killers, its requirement of reckless indifference could easily have been satisfied.
320 60 S.W.3d 759 (Tenn. 2001).
321 Id. at 767.
322 See id. at 764.
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argued that the intent required for the predicate felony—knowing infliction
of serious bodily injury—did not entail recklessness with respect to death as
required under Tison.323 The court dismissed this argument on the now
familiar ground that Tison applied only to accomplices: “Tison involved
defendants who themselves did not kill the victims. Here the defendant’s
own actions killed the victim. In [Enmund], the United States Supreme
Court approved the imposition of the death penalty on the actual killer in a
felony murder.”324 It is certainly not true that Enmund himself was the
actual killer, so the court must have been referring to the formulaic threepart test, and it must have employed the mechanical reading. Most troubling
about Godsey, though, is the court’s clearly mistaken view that the Tison
threshold of recklessness with respect to death can somehow be met by the
culpability with respect to the conduct of the predicate felony: “[T]he culpable mental state for aggravated child abuse, ‘knowing,’ is a higher standard
than ‘reckless indifference.’ Therefore, the Court of Criminal Appeals correctly concluded that both the statutory elements and the facts of this case
establish reckless indifference.”325 But Tison demands recklessness with
respect to death, not recklessness with respect to serious injury.326 Still, the
court might reasonably have argued that knowing infliction of serious bodily
injury to a child implies reckless indifference to human life, and the court, to
its credit, did observe that given the grievous nature of the head injury, “the
facts of this case establish reckless indifference.”327
Turning to federal courts, a 2003 Tenth Circuit case typifies the now
prevailing mechanical reading: Workman v. Mullin.328 In Workman, the evidence showed that the defendant caused three blunt head injuries to a twoyear-old child, equivalent in force to the fall from a two- or three-story building.329 The defendant was convicted under Oklahoma’s child abuse murder
statute, on a theory of willful or malicious use of unreasonable force, and was
sentenced to death on the basis of the aggravating circumstance that the killing was “especially heinous, atrocious, or cruel.”330
Workman challenged the constitutionality of his death sentence by citing Enmund and Tison.331 The court could have easily answered this objection by finding recklessness based on the above facts. Instead, however, the
court concluded that “Workman’s crime falls into the category of cases under
Enmund in which a felony murderer has ‘actually killed’ his victim.”332 This
conclusion meant that the inquiry was over. “The significance of falling into
323 Id. at 773–74.
324 Id. at 773 (citation omitted).
325 Id. at 773–74 (citation omitted).
326 See supra notes 147–48 and accompanying text.
327 Id. at 774.
328 342 F.3d 1100 (10th Cir. 2003).
329 Id. at 1104.
330 Id. at 1105 (quoting OKLA. STAT. tit. 21, § 701.12(4) (2016)).
331 Id. (first citing Tison v. Arizona, 481 U.S. 137, 157 (1987); and then citing Enmund
v. Florida, 458 U.S. 782, 798 (1982)).
332 Id. at 1111 (citing Tison, 481 U.S. at 150).
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Enmund’s category of when a felony murderer has ‘actually killed’ his victim
is that the Eighth Amendment’s culpability determination for imposition of
the death penalty has then been satisfied.”333 The circuit court took this view
because it saw the test as “carefully formulated,” given its frequent repetition:
“The phrase ‘actually killed, attempted to kill, or intended to kill’ or variations thereof is repeated at least nine times in Enmund, is repeated at least
three times in Tison, and is repeated at least twenty times in Cabana v. Bullock.”334 The circuit court also included a citation to Cabana for its proposition, with a telling use of an ellipsis: “Cabana, 474 U.S. at 386, 106 S.Ct. 689
(‘If a person sentenced to death in fact killed . . . the Eighth Amendment
itself is not violated by his or her execution.’).”335 The full sentence in
Cabana reads, “If a person sentenced to death in fact killed, attempted to kill,
or intended to kill, the Eighth Amendment itself is not violated by his or her
execution.”336 Thus, nothing mattered for the Tenth Circuit after the
comma; the court read the plain language of “actually killed” to say nothing
about culpability.
An opinion from the Eighth Circuit agreed with this version of the
mechanical reading: Palmer v. Clarke, from 2005.337 This was a later proceeding of the Nebraska case of State v. Palmer, in which the defendant bound and
then strangled a coin dealer to death during a robbery of the dealer’s
house.338 While the facts seemed to show that this was an intentional killing,
under state law the conviction and death sentence did not require any finding of culpability. The court denied that such a finding was necessary,
because the “accurate statement of the Supreme Court’s test” in Enmund and
Tison was that execution was unconstitutional “only when a defendant does
not himself kill, attempt to kill, or intend that a killing take place.”339 And,
in keeping with the mechanical reading, the court viewed the first clause as
an independently sufficient category: “Because the Nebraska Supreme Court,
as well as the jury . . . determined that the record in this case showed that
Palmer alone killed Zimmerman . . . , the death penalty may constitutionally
be imposed upon Palmer.”340 To this court, conduct matters, not culpability.
Most recently, Arizona has also adopted this version of the mechanical
reading. In the 2012 case of State v. Joseph, a killing took place during a
domestic dispute in which the defendant broke into his estranged wife’s
home and repeatedly shot her, her boyfriend, and her fourteen-year-old
nephew, killing the nephew.341 The evidence clearly showed at least reckless
333 Id. (citing Cabana v. Bullock, 474 U.S. 376, 386 (1986), abrogated by Pope v. Illinois,
481 U.S. 497 (1987)).
334 Id. (citations omitted).
335 Id. at 1111–12 (alteration in original).
336 Cabana, 474 U.S. at 386.
337 408 F.3d 423 (8th Cir. 2005).
338 399 N.W.2d 706, 712–13 (Neb. 1986) (per curiam).
339 Palmer, 408 F.3d at 441.
340 Id.
341 283 P.3d 27, 29 (Ariz. 2012) (en banc).
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indifference to human life—indeed, all but one juror who found felony murder also found premeditation and intent to kill.342 However, Arizona provides an Enmund-Tison jury instruction during capital sentencing in cases
only where the defendant is an accomplice in a felony murder, and the court
denied that such an instruction was required for actual killers:
The Eighth Amendment does not allow the death penalty to be imposed for
felony murder unless the defendant “himself kill[s], attempt[s] to kill, or
intend[s] that a killing take place or that lethal force will be employed,”
Enmund v. Florida, 458 U.S. 782, 797 . . . (1982), or is a major participant in
the crime and acts with reckless indifference, Tison v. Arizona, 481 U.S. 137,
157–58 . . . (1987). Joseph does not dispute that he acted alone in killing
Tommar. Because Enmund allows imposition of capital punishment on a
defendant who actually kills a victim in the course of committing another
felony, the Eighth Amendment did not require that an Enmund/Tison
instruction be given.343
The court takes the “actually killed” category as independently sufficient
to meet the constitutional requirements, without any consideration of mens
rea, and it fails to mention or recognize the Eighth Amendment’s underlying
justifications.
C.
Mechanical Reading: Enmund and Tison Are Inapplicable to Actual Killers
While the above courts held that Enmund and Tison were not violated in
cases of inadvertent actual killers, another group treats Enmund and Tison as
entirely inapplicable in actual killing scenarios. In one sense, this reading is
better: it acknowledges that Enmund and Tison left the question of inadvertent killers open. Yet in another sense it is even worse: it presumes that if
Enmund and Tison do not forbid the execution of actual killers, the Eighth
Amendment has nothing to say about such executions.
The first court employing this version of the mechanical reading was the
Court of Criminal Appeals of Texas in 1984 (two years after Enmund). In
Stewart v. State, the defendant shot the victim in the head twice during a burglary.344 The defendant argued on appeal that Enmund required proof of
intent to kill, but this argument was rejected because Enmund did not involve
the actual killer: “We are not faced with the Enmund situation in the instant
case . . . . Because there is evidence which shows appellant was the triggerman, we hold that Enmund v. Florida does not apply to the instant case.”345
Only in cases “where the defendant was clearly not the triggerman” must a
court take into account “the defendant’s culpability.”346 Instead of finding
that the fact of a gunshot to the head clearly showed intent to kill and premeditation, the court instead distinguished Enmund entirely.
342 Id. at 30–31.
343 Id. at 30 (first, second, and third alterations in original) (citation omitted) (citing
Enmund v. Florida, 458 U.S. 782, 797–98 (1982)).
344 686 S.W.2d 118 (Tex. Crim. App. 1984) (en banc).
345 Id. at 123.
346 Id.
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The next court to adopt such a reading was the Supreme Court of
Nebraska. In State v. Rust, the defendant shot several police officers and a
civilian who came to their aid while in flight from a robbery.347 Rust
appealed his death sentence, arguing that capital felony murder required
intent to kill or premeditation, and cited Enmund for support.348 The court
rejected this argument with the following reasoning:
Enmund held only that the death penalty cannot be imposed on one who
aids and abets a felony in the course of which a murder is committed by
others, but who does not himself kill, attempt to kill, or intend that a killing
take place or that lethal force be employed. . . . [T]he trial evidence is that
such is not the situation before us.349
While the evidence warranted the conclusion that Rust both killed and
intended to kill, the verdict of felony murder did not require a finding of
intent to kill. The court apparently found Enmund inapplicable because Rust
killed, irrespective of intent. In any case, the Rust decision was so read in the
later decision of State v. Palmer.350
The Eighth Circuit has at times interpreted the Enmund-Tison test in a
similarly mechancial way. In the court’s first encounter with the question—a
1994 case entitled Murray v. Delo—the defendant participated in a robbery
involving the deaths of victims, but he claimed that he did not kill or intend
to kill any of them.351 Other evidence indicated that he shot the victims in
the back.352 He raised an Enmund-Tison claim based on his version of the
facts, but this was quickly rejected by the court: “We believe that his reliance
on these cases is misplaced. Enmund and Tison are felony-murder cases
which apply in situations in which the defendant was not the shooter. As
stated above, the evidence at trial indicated that the petitioner actually committed at least one murder, and perhaps both.”353 What is important for our
purposes is not that the defendant’s legal challenge was based on an entirely
different version of the facts, but that the court immediately assumed that
neither an Enmund nor a Tison analysis was required in the case of the actual
killer.
Such reasoning was also employed by the Oklahoma Court of Criminal
Appeals in interpreting the state’s child abuse murder statute (discussed earlier) in Wisdom v. State.354 The victim, a three-year-old child, died of a subdural hematoma, with medical evidence indicating that the fatal wound
could have resulted from an open-handed blow or from shaking.355 The
defendant challenged the child abuse law as unconstitutional because it
347
348
349
350
351
352
353
354
355
388 N.W.2d 483, 492 (Neb. 1986).
Id. at 492–93.
Id. at 493.
600 N.W.2d 756, 769 (Neb. 1999).
34 F.3d 1367, 1376 (8th Cir. 1994).
Id.
Id.
918 P.2d 384 (Okla. Crim. App. 1996).
Id. at 388.
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required no intent with respect to the death of the child/victim.356 In a very
brief discussion, the Court of Criminal Appeals distinguished Enmund and
Tison entirely because they did not involve an actual killer:
Both Tison and Enmund concerned situations where . . . a person who had
not actually caused the injuries resulting in the victim’s death, was sentenced
to the death penalty. Appellant is the person who actually killed another,
not the person who participated in a felony but who did not actually cause or
intend to cause the death of another.357
For this reason, the “death qualifying language” of Enmund and Tison ought
not be “applied” to anyone who had actually killed.358
A second Oklahoma case to consider here is Abshier v. State.359 Abshier
involved the same child abuse murder statute as in Wisdom. Unlike in Wisdom
though, the facts of Abshier more obviously bespeak depraved indifference to
human life. The victim was a toddler, and medical evidence indicated nine
separate head wounds with most of the skin on the victim’s face gone.360
One medical expert believed the victim’s head had been stomped.361 The
court reiterated its position that “the requirements of Enmund, [Cabana],
and Tison do not apply [to an actual killer], and we need not determine
whether Appellant was a ‘major participant in a felony and exhibited reckless
indifference to human life’—he was the only participant.”362
Like Oklahoma, Mississippi has also concluded that Enmund and Tison
are inapplicable to actual killers.363 In Evans v. State,364 there was no question that the defendant was an actual killer who possessed an intent to kill
(he kidnapped, sexually assaulted, and strangled a ten-year-old girl),365 but
356 Id. at 395 (“Appellant argues that the language in Enmund and Tison strongly indicates that one who kills without an intent to do so or to cause major bodily injury, and who
does not knowingly act with reckless indifference to human life, is not constitutionally
eligible to receive the death penalty.”).
357 Id.
358 Id.
359 28 P.3d 579 (Okla. Crim. App. 2001), overruled on other grounds by Jones v. State, 134
P.3d 150 (Okla. Crim. App. 2006).
360 Id. at 587, 591.
361 Id. at 591.
362 Id. at 608 (citing Wisdom, 918 P.2d at 395). The court also cited (and completely
misread) Hopkins v. Reeves as if it supported its reading of Enmund and Tison. Hopkins
held, consistently with Cabana, that the Enmund-Tison rule, stemming from the Eighth
Amendment requirements for punishment, did not alter the substantive criminal law of
felony murder in the states. Hopkins v. Reeves, 524 U.S. 88, 99–100 (1998). The Abshier
court, though, took Hopkins to mean that, because Enmund created no culpability requirement for guilt, it created no culpability requirement for the Eighth Amendment. Abshier,
28 P.3d at 609. This reading is completely backwards. Hopkins said only that the culpability required by proportionality did not affect the elements of liability, not that there was no
longer any culpability required by proportionality.
363 See Evans v. State, 725 So. 2d 613 (Miss. 1997).
364 Id.
365 Id. at 633.
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he challenged the felony murder aggravator366 as unconstitutional because it
required no finding of intent.367 The Mississippi Supreme Court saw no
need to apply Enmund and Tison because, “unlike the defendants in [those
cases], Evans was a major participant in a felony-murder and actually killed
his victim.”368
One final case should be considered in this category—the Tennessee
case State v. Pruitt.369 The predicate felony was a robbery, specifically a
carjacking.370 The court summarized the facts as follows:
Mr. Pruitt ran up behind the older man and pushed him into the car.
Although she could not see clearly into the car, it appeared to [the witness]
that the two men were “tussling.” . . . After about fifteen seconds, she saw Mr.
Pruitt throw the older man to the ground, slam the car door, and drive away.
When Ms. Pruitt checked on the victim, he was shaking and having trouble
breathing and he was bleeding from his nose and both ears.371
The victim was a seventy-nine-year-old who later died from his injuries—
injuries, perhaps, that would not foreseeably cause death to an average person.372 The prosecution sought—and the jury found—the aggravating circumstance of a “knowing” killing by one having a “substantial role” in a
predicate felony.373 Thus it may seem that this procedure satisfied the
requirements of Tison or even Enmund, although the presence of “knowledge” on these facts seems dubious. However, the defendant argued that
evolving standards of decency precluded execution of an inadvertent actual
killer, which he claimed to be.374 This alternative manner of addressing the
inadvertent actual killer problem was rejected, though, in the same way that
the other challenges were rejected—because “Enmund and Tison addressed
defendants who were accomplices to, but not perpetrators of, felony murder.”375 This is the mechanical reading, applied in a different way.
D.
Mechanical Reading—Reliance on Process Checks
Other courts employing the mechanical reading recognize the inadvertent actual killer problem, yet tolerate it because of their faith in process
checks (prosecutorial and jury discretion, mitigation, appellate review, etc.)
to prevent execution of inadvertent killers.
366 MISS. CODE ANN. § 99-19-101(5)(d) (West 2013) (“The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an
attempt to commit, or flight after committing or attempting to commit, any [enumerated
felony].”).
367 Evans, 725 So. 2d at 682–84.
368 Id. at 684.
369 415 S.W.3d 180 (Tenn. 2013).
370 Id. at 188.
371 Id. at 187.
372 Id. at 188, 218.
373 Id. at 205.
374 Id. at 210.
375 Id. at 211–12.
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A 1992 case from Tennessee, State v. Middlebrooks,376 is representative.
In Middlebrooks, the state’s high court held that the felony murder statute was
constitutional under the Eighth Amendment and the state constitution
(which mirrored the federal) even absent a requirement of intent.377 Like
Nebraska, Tennessee took the extreme approach of completely distinguishing Enmund and Tison when the circumstances involved an actual killer.378
Although the court recognized that this position was at odds with the Eighth
Amendment’s underlying concern for culpability, the court put its faith in
the appellate review process to prevent unjustified results.379 “Accordingly,
rather than an absolute rule of per se disproportionality, this Court has in the
past relied on its statutory duty of review . . . to assure that the sentence in
each case is not disproportionate or excessive.”380 Any irrational selection of
felony murderers for execution could be corrected on review, and the risk of
such error was not substantial enough to change the rule itself.
Similar reasoning was employed in the 1995 Maryland case of Brooks v.
State.381 There, the female defendant, a recovering drug addict who had previously been a victim of sexual abuse, became enraged at a female housemate
who she thought had groped her sexually.382 She bludgeoned her repeatedly with a metal tool until she died, and also wrapped an electrical cord
around her neck.383 The jury convicted her of robbery and felony murder.384 Brooks challenged her designation as death-eligible without a finding of intent to kill.385 Specifically, she questioned whether the scheme
sufficiently narrowed the class of death-eligible defendants in felony murder
cases.386
In determining death eligibilty, the court was faced with the question of
culpability, given that felony murder requires no “proof of any particular
mens rea [with respect to death].”387 The felony murder law made a homi376 840 S.W.2d 317 (Tenn. 1992), superseded by statute as recognized in Pruitt, 415 S.W.3d
at 180.
377 Id.
378 See id. at 337 (“[Enmund and Tison] dealt with the problem of imposing the death
penalty in cases of vicarious liability for felony murder, i.e., where an accomplice in the
felony, one who did not actually kill the victim, is convicted of murder under the felony
murder doctrine and receives the death penalty.”).
379 See id. at 349 (Drowota, J., concurring in part and dissenting in part).
380 Id. at 340 (majority opinion).
381 655 A.2d 1311 (Md. Ct. Spec. App. 1995), abrogated by Winters v. State, 76 A.3d 986
(Md. 2013).
382 Id. at 1313.
383 Id.
384 Id. at 1314.
385 Id. at 1316 (“[A]ppellant contends that her entire sentencing proceeding was
tainted because the judge improperly concluded that she was death-eligible,” and that
therefore the court needed to “consider the constitutional validity of Maryland’s capital
sentencing scheme.”). Brooks was not sentenced to death, but challenged her designation
as death-eligible. Id. at 1323.
386 See id. at 1321.
387 Id.
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cide murder even if “the killing may have been . . . merely accidental,” and
the trial judge seemed attuned to this problem.388 The Court of Special
Appeals was able to avoid all these thorny problems of “personal conscience,”
though, by taking note that “the Supreme Court has suggested that death
may be imposed on the principal in a felony murder case without regard to
mens rea,” and cited to Tison and Enmund.389 The court found it acceptable
“that the felony murder rule creates a risk of imposing the death penalty for
a killing that was truly accidental,”390 and cited to the facts of Stewart v. Maryland391—a case where the shock of a robbery caused a sixty-year-old motel
desk clerk to die of an adrenaline-induced heart attack.392 The court conceded that the defendant in Stewart could be sentenced to death under this
regime it was approving, but that capitally punishing such an accidental
death was permissible.393 This was because, although such an arbitrary death
sentence was indeed a risk, it was not a “substantial” risk.394 The risk was
insubstantial because (1) the statute allowed for a catchall mitigator (“any
other facts that the jury . . . finds as mitigating”), and (2) the statute offered
post-sentence review to determine if the evidence of aggravating circumstances outweighed the evidence of mitigating circumstances and if the sentence resulted from passion, prejudice, or arbitrariness.395 Brooks, while
recognizing the inadvertent actual killer problem and the attendant risk of
an execution disproportionate to the offender’s culpability, opted to rely on
process checks instead of an alteration of the rule itself.396
Is this confidence justified? It is probably true that few inadvertent killers are sentenced to death. We will conclude below that very few capitally
sentenced killers invoking Enmund and Tison on appeal or habeas corpus
review, in fact killed inadvertently.397 It is also very likely that few of those
inadvertent killers sentenced to death have been executed since only a small
minority of death sentences—about one in six since 1976—have been carried
388
Id. at 1317 (footnote omitted). The trial judge had observed:
This is one of the most troublesome areas of Maryland’s death penalty law to
me because I can walk over to Mr. Dixon and I can say to him, Mr. Dixon, I hate
you[, then] . . . I can kill him . . . . And under Maryland law I cannot be prosecuted and receive the death penalty. . . . But if in fact I say to him that I want his
sixty-nine dollar watch and [I] . . . steal his watch and murder him, I can be
prosecuted for the death penalty . . . .
Id. at 1321–22 (quoting the lower court).
389 Id. at 1322 (citation omitted).
390 Id.
391 500 A.2d 676 (Md. Ct. Spec. App. 1985).
392 Id. at 683; Brooks, 655 A.2d at 1322.
393 Brooks, 655 A.2d at 1322.
394 See id.
395 Id. at 1322–23 (quoting MD. CODE ANN., CRIM. LAW § 413(g)(8) (West 1996)
(repealed 2002)).
396 See id. at 1323.
397 Infra Section IV.E.
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out.398 Yet defining inadvertent killing as capital murder does harm even
when such killers are not executed. It invites prosecutors to charge suspected inadvertent killers with capital murder to induce favorable pleas, and
diverts scarce capital defense resources. If the rarity of executing a class of
offenders justifies making those offenders death-eligible, then the Enmund
Court should have declared nonculpable accomplices to felony murder
death-eligible. Instead, the Court viewed the rarity of capital punishment for
this class of offenders as evidence that it violated evolving standards of
decency.
E.
Summary
Our survey of the lower court decisions interpreting Enmund and Tison
in cases of actual killers revealed a dichotomy between a reflective reading,
which saw culpability as required by the justifying purposes of capital punishment, and a mechanical reading, which required only killing (irrespective of
culpability). The latter group divided into decisions that the Enmund-Tison
rule (1) authorized execution of all killers, (2) did not apply to actual killers,
or (3) was unnecessary for preventing execution of inadvertent killers.
Overall, the weight of authority hews in favor of the mechanical reading.
Twelve jurisdictions read Enmund and Tison mechanically; only six jurisdictions read the cases reflectively. Interestingly, there are some chronological
patterns in the opinions discussed above. While the reflective interpretation
somewhat prevailed in the period between Enmund and Tison (seven opinions versus three), after Tison the balance tipped heavily in favor of the
mechanical interpretation (fifteen opinions versus two).
398 From 1976 through 2015, there were 8087 death sentences in the United States.
Death Sentences by Year Since 1976, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo
.org/death-sentences-year-1977-present (last visited Dec. 15, 2016). There were 1422
executions, resulting in an execution rate of 17.6%. Searchable Execution Database, DEATH
PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/views-executions (last visited Dec.
15, 2016).
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FIGURE 2
LOWER COURT OPINIONS
15
3
7
2
Pre-Tison
Post-Tison
Reflective
Mechanical
It appears that, after Tison, lower courts became more reluctant to look to
the underlying purposes of the Eighth Amendment when interpreting the
felony murder test. Instead, these courts often confined the Enmund rule to
accomplices, finding that actual killers satisfied the test’s requirements
automatically.
This survey also reveals how few of the cases present facts that raise a
genuine doubt as to whether the killer adverted to the danger of death. Most
of the cases involved intentional shootings (nine), strangulations (five), stabbings (four), or severe battering either of an infant or with a weapon, producing a brain injury (six).399
FIGURE 3
MECHANISMS
OF
DEATH
IN
ACTUAL KILLER CASES
Other, 2
Intentional
Stabbings, 4
Intentional
Strangulations,
5
Intentional
Shootings, 9
Severe
Battering, 6
399 Note that this is one case fewer than above, as Carlos was an accomplice case. See
Carlos v. Superior Court, 672 P.2d 862 (Cal. 1983).
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In such cases, recklessness with respect to death is easy to establish, and could
have been established by appellate review of the record. Nevertheless, the
courts ignored this option in the mechanical reading cases, opting either to
find Enmund-Tison was satisfied by actual killers irrespective of culpability, or
to find it entirely inapplicable to actual killers.
The only two cases (classified as “other” in the chart above) that had
even colorable claims of inadvertent killing were Pruitt and Wisdom.400 Pruitt,
recall, presents what may be a common scenario for inadvertent killing in
furtherance of a felony: a weaponless battery that unexpectedly leads to
death due to the vulnerability of the victim (an elderly man suffering from
coagulopathy, a condition similar to hemophilia).401 The victim suffered
three distinct blows to the head, although it is unclear whether these came
from punches or from being thrown against the car and ground.402 Similarly, in Wisdom, the precise conduct leading to the death of the child was not
established, and even the alleged conduct—either an open-handed blow or
shaking—did not clearly evidence the conscious creation of a substantial risk
of death.403
V.
A.
CORRECTING
THE
MECHANICAL READING
The Mechanical Reading Is Flawed: It Fails to Assess Culpability,
and Is Therefore Irrational
Although the Court held that Enmund could not be executed “absent
proof that [he] killed or attempted to kill, and regardless of whether [he]
intended or contemplated that life would be taken,”404 most lower courts
have read the Enmund decision to allow execution of killers regardless of
whether they intended or contemplated death. However consistent the
mechanical reading of Enmund and Tison may be with some language in
those cases, it is inconstent with the Eighth Amendment principles on which
Enmund, Tison, and other major cases rest. Thus, the mechanical reading
does not require that a defendant who caused death have done so culpably,
but permits capital punishment in cases where a culpable mental state is
entirely absent or where it falls below that level of culpability required for
other murders. Because the Constitution requires the rational selection of
400 See Wisdom v. State, 918 P.2d 384 (Okla. Crim. App. 1996); State v. Pruitt, 415
S.W.3d 180 (Tenn. 2013).
401 Pruitt, 415 S.W.3d at 187, 192.
402 Id. at 205. Arguably this case should have been overturned for insufficiency of evidence. Recall that Pruitt was convicted for “knowingly” killing, even though he had no
knowledge of the victim’s medical condition. Id. Even a Tison instruction conditioning a
death sentence on a finding of reckless killing cannot prevent this kind of pro-prosecution
jury nullification. Appellate courts must also be willing to review such sentences for sufficient evidence of recklessness.
403 Wisdom, 918 P.2d at 384. On the controversy over the reliability of evidence of
lethal shaking, see generally DEBORAH TUERKHEIMER, FLAWED CONVICTIONS: “SHAKEN BABY
SYNDROME” AND THE INERTIA OF JUSTICE (2014).
404 Enmund v. Florida, 458 U.S. 782, 801 (1982) (emphasis added).
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the most culpable offenders for capital punishment,405 the mechanical reading of the Enmund-Tison test violates the theoretical underpinnings of these
cases.
That the mechanical reading permits the execution of nonculpable killers is easily demonstrated by actual and hypothetical cases. Most of the lower
court cases interpreting Enmund and Tison in the mechanical way dealt with
intentional or reckless killers whose legal challenges argued merely that a
finding of intentionality or recklessness should have been made. The facts
are not always so clear-cut in felony murder scenarios, however.406 We could
start with the list of hypotheticals (some drawn from actual cases) noted by
Justice Broussard, dissenting in People v. Anderson:
Among the cases now subject to the death penalty are the following:
(a) A burglar startles a resident, who dies of a heart attack. (Cf. People
v. Stamp (1969) 2 Cal.App.3d 203, 82 Cal.Rptr. 598.)407
(b) A robber inflicts only a minor injury, but the victim dies weeks later
of unexpected medical complications.
(c) While defendant is on the way to committing an armed robbery, his
gun fires accidentally, killing his accomplice. (Cf. People v. Johnson (1972) 28
Cal.App.3d 653, 104 Cal.Rptr. 807.)
(d) While defendant is driving the get-away car, he causes an accident,
killing a bystander. (Cf. People v. Fuller (1978) 86 Cal.App.3d 618, 150
Cal.Rptr. 515.) Indeed the defendant would be subject to the death penalty
even if he were driving carefully, so long as he could be said to be “the actual
killer,” and even if his victim was the robber.408
We can add other well-known felony murder cases drawn from criminal law
textbooks. In People v. Jenkins,409 a suspect was convicted of felony murder
when he shook free from a pursuing officer who was brandishing his gun,
with the result that the officer fatally shot his partner.410 In People v.
405 See Atkins v. Virginia, 536 U.S. 304, 319 (2002).
406 Again, we emphasize that the vast majority of felony murders are intentional shootings, and recognize that these are outlier cases.
407 Stamp—where the victim of the robbery was already in ill health (i.e., he happened
to be an “eggshell” victim) and dropped dead of fright when the robbers entered his
store—is arguably no longer good law in California, because the revised CALCRIM 540A
would require proof that death was foreseeable. See People v. Stamp, 2 Cal. App. 3d 203
(Cal. Ct. App. 1969); Advisory Comm. on Criminal Jury Instructions, Judicial Council of
Cal., Criminal Jury Instructions 2016, CALCRIM § 540A. In addition, there remains a serious question—never litigated—as to whether Stamp could “kill” in the sense required by
the holding in People v. Washington, 402 P.2d 130 (Cal. 1965), without a battery. But the
outcome of the case illustrates the possibility of a strict liability felony murder case that
could constitutionally warrant the death penalty under the mechanical reading we critique
here. Felony murder convictions for spontaneous heart attacks are rare, but the Stamp case
is hardly unique. See, e.g., People v. Ingram, 492 N.E.2d 1220 (N.Y. 1986).
408 People v. Anderson, 742 P.2d 1306, 1334–35 n.3 (Cal. 1987) (Broussard, J., concurring in part and dissenting in part).
409 545 N.E.2d 986 (Ill. App. Ct. 1989).
410 Id. at 989.
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Matos,411 a fleeing robber was convicted of felony murder when a pursuing
police officer fell down an airshaft.412 In Hickman v. Commonwealth,413 the
defendant was convicted of felony murder because he was present while a
companion took a moderate dose of cocaine, from which he unexpectedly
overdosed.414
These cases illustrate that permitting the execution of inadvertent felony
murderers poses two risks. One is that those executed will have less culpability than the Eighth Amendment demands. But, in addition, where culpability is minimal, causal responsibility can also become highly attenuated. If
felons can be executed for causing death without any inquiry into their culpability, there is a greater danger that they will be executed without having
caused death at all. Where a death results from excessive force or reckless
pursuit by law enforcement, prosecutors may be especially tempted to deflect
causal responsibility onto an arrestee for the death.415 The threat of a capital
felony murder charge in such cases can force a guilty plea to a noncapital
charge, concluding a travesty no reviewing court need ever see. Thus, the
mechanical reading can do real harm, even if few inadvertent killers are actually executed.
The illogic of the mechanical reading is also apparent when we compare
the inadvertent killings it condemns to the intentional killings Eighth
Amendment law exempts from death. Compare, for example, a robber or
burglar whose intrusion triggers a heart attack in a homeowner416 to an abusive husband who commits manslaughter by strangling his wife on learning
that she plans to leave him.417 The former can be executed, but the latter
cannot. In California, a frenzied killer who stabs a child repeatedly is exempt
from execution if he kills without the deliberation that would elevate a murder to first degree.418 Yet, a robber or burglar who kills inadvertently is
death-eligible in California without any further aggravation.419
Once we disengage capital sentencing from considerations of culpability
with respect to death, we find ourselves at war with our deeply held intuitions
as well as with Eighth Amendment principles. The point here is simple: if we
must assess culpability in order to rationally select who should be executed,
then any test that disregards culpability is bound to produce absurd results.
411 568 N.Y.S.2d 683 (N.Y. Sup. Ct. 1991).
412 Id. at 684.
413 398 S.E.2d 698 (Va. Ct. App. 1990).
414 Id. at 699.
415 See Alison Flowers, Charged with Murder, But They Didn’t Kill Anyone—Police Did, CHI.
READER (Aug. 18, 2016), http://www.chicagoreader.com/chicago/felony-murder-policeshooting-investigation/Content?oid=23200575.
416 People v. Ingram, 492 N.E.2d 1220 (N.Y. 1986).
417 People v. Berry, 556 P.2d 777 (Cal. 1976). See generally Victoria Nourse, Passion’s
Progress: Modern Law Reform and the Provocation Defense, 106 YALE L.J. 1331 (1997) (noting
frequent use of subjective provocation standards like the Model Penal Code’s to mitigate
domestic violence homicides).
418 See People v. Anderson, 742 P.2d 1306 (Cal. 1987).
419 See People v. Watkins, 290 P.3d 364, 390 (Cal. 2012).
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The Solution: At Least Recklessness for All Cases
We have thus far argued that the most prevalent interpretation of the
Enmund-Tison rule in the lower courts—the mechanical reading—disconnects death sentencing from culpability for a category of offenders (those
who “kill”) that it cannot define with precision. It thereby violates Eighth
Amendment principles requiring rational narrowing on the basis of culpability in every case.
If Eighth Amendment principles require some degree of culpability
towards death for actual killers to become death-eligible, it is natural to ask,
What degree of culpability? We propose that the interpretation of the
Enmund-Tison test that best reconciles both decisions with Eighth Amendment principles would require at least reckless indifference to human life for
every defendant sentenced to death for felony murder. This reading of
Enmund and Tison reconnects their test to an assessment of culpability, and
so to the underlying justifications of the Eighth Amendment (deterrence and
retribution). A requirement of recklessness dispels the problem of the inadvertent actual killer, and also imposes a baseline mens rea across the somewhat disparate state law definitions of “killing.” Moreover, it provides a
principled way of narrowing the category of felony murders (which can be
committed negligently) to those deserving greater punishment—those committed recklessly.
In proposing this solution we do not oppose a more ambitious solution:
requiring intent to kill for all capital murder. This solution would have one
distinct advantage, in that it would ensure that every death-eligible murder
was in one respect more culpable than every murder that was not death-eligible. By requiring that capital felony murders must also be intentional
murders, this solution would ensure that capital felony murders would be no
less culpable than noncapital intentional murders.
Yet while a uniform requirement of intent would better fulfill the Eighth
Amendment principles requiring rational narrowing on the basis of culpability, and would accord with both the holding and the reasoning of Enmund, it
would abrogate the holding of Tison. While the Supreme Court may choose
to overturn precedent by establishing a uniform requirement of intent to kill,
lower courts are constrained from doing so. By contrast, the solution we propose is an interpretation of Enmund and Tison that preserves their authority
and extends their reasoning to an open question. Indeed, it is a better interpretation than the one that now prevails. Accordingly, our proposal is one
that state and lower federal courts can and should implement now even
absent Supreme Court intervention.
In offering this proposal, we recall the measured position offered by
Enmund’s attorney in oral argument:
Now we think the intent line is the best line, but there is also another line
that would be a subjective state of culpability with regard to the homocide,
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[sic] be it recklessness . . . some sort of awareness of it, and that was not
found in this case. It would be enough under the model penal code.420
Similarly, we recall the concession of the four dissenters in Tison, that:
[i]nfluential commentators and some States have approved the use of the
death penalty for persons, like those given in the Court’s examples, who kill
others in circumstances manifesting an extreme indifference to the value of
human life. Thus an exception to the requirement that only intentional
murders be punished with death might be made for persons who actually
commit an act of homicide.421
If a requirement of recklessness is the most demanding standard the Court’s
precedent will allow, it is also the least demanding standard the Court’s
avowed principles can tolerate.
1.
Not a New Standard of Decency, Not a Necessary Interpretation of
Existing Cases
In advocating for our new solution, it is important that we explain what
such a requirement would mean doctrinally. As should be evident from our
discussion of Enmund and Tison above, we do not argue that this is a necessary or obvious reading of those cases. Instead, we argue only that the application of the Eighth Amendment to this class of cases was left open—that
“Enmund, by distinguishing from the accomplice case ‘those who kill,’ clearly
reserved” the question of an actual killer with a mental state less than that of
intent.422
Moreover, we do not argue (although we do not deny) that this proposed requirement of recklessness even for the actual killer is a new Eighth
Amendment principle that should now be imposed because of the emergence, since Enmund and Tison, of an “evolving standard[ ] of decency.”423
We believe that there is substantial support for this claim: our survey of cases
found few instances of even arguably inadvertent killers who had been sentenced to death. Validating such a claim, however, requires searching analysis of trends in executions, sentencing, and in state law that we do not
undertake here. The Court has given priority to demonstrations of comparative disproportionality in declaring the application of the death penalty to
particular classes of cases disproportionate.424 Thus it seems prudent for any
litigant seeking to persuade the Supreme Court—or a lower court—to adopt
a minimum requirement of recklessness for execution of felony murderers to
420 Transcript of Oral Argument at 51, Enmund v. Florida, 458 U.S. 782 (1982) (No.
81-5321).
421 Tison v. Arizona, 481 U.S. 137, 169 (1987) (Brennan, J., dissenting) (footnote
omitted).
422 Id.
423 See Brumfield v. Cain, 135 S. Ct. 2269, 2274 (2015) (quoting Atkins v. Virginia, 536
U.S. 304, 321 (2002)).
424 See Kennedy v. Louisiana, 554 U.S. 407 (2008), and Enmund v. Florida, 458 U.S. 782,
for the methodology of reaching a new rule concerning the proportionality of applying
capital punishment in a category of cases.
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offer evidence that condemnations and executions of inadvertent killers are
rare. We believe such evidence is there to be found, but that is a topic for
further research.
In this Article, however, we advocate a uniform requirement of recklessness (even for an actual killer) as a matter of doctrinal development that is
necessitated by the Eighth Amendment’s underlying theoretical justifications. Just as Tison refined the common law of the Eighth Amendment by
providing a solution to cover a class of cases not considered by the Enmund
court (non-triggermen who were nevertheless recklessly indifferent major
participants), so do we call for a further refinement to exempt another class
not yet addressed: the perpetrator of felony murder who causes death inadvertently. Our proposed solution is simple: require recklessness in all cases,
even for the actual killer.
2.
The Need for a Culpability Threshold
First, we point out the need for at least some culpability threshold. If
capital punishment is justified by desert and deterrence, it ceases to be justified once culpability dips below a certain level. Below we display a hierarchy
of increasingly culpable mental states accompanying killing during a felony.
Each is illustrated with both a hypothetical example and a real case. These
examples show that not all actual killings are equally culpable, so that a line
needs to be drawn somewhere on the chart, above which killings should not
be capitally punishable.
FIGURE 4
Actual Killing
Hypothetical
Real Case
Negligent
Young man throws down
elderly woman during
purse snatching; bound
robbery victim dies of
asphyxiation.
State v. Pruitt, 415 S.W.3d
180 (Tenn. 2013) (79year-old dies from
relatively short
weaponless beating
during carjacking).
Reckless
Arsonist lights fire to
vacation home even
though car in driveway.
Adams v. Wainwright, 709
F.2d 1443, 1446–47 (11th
Cir. 1983) (per curiam)
(during burglary and
robbery, prolonged
beating of homeowner
with iron poker, leaving
body grossly mangled).
Extreme Indifference
Type 1 (endangering
multiple victims)
Defendant drives car into
a crowded lawn party he
has been excluded from.
State v. Joseph, 283 P.3d
27 (Ariz. 2012) (en
banc) (fires multiple
shots at each of three
victims).
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Extreme Indifference
Type 2 (recklessness +
antisocial purpose or
cruelty)
Burglary victim dies while
being tortured to force
him to reveal
combination of safe.
Fairchild v. State, 998 P.2d
611 (Okla. Crim. App.
1999) (escalating abuse
of crying three-year-old:
repeated blows, burning,
and finally throwing
against table).
Knowing
Abusive parent refuses to
feed baby for a week
because it is crying.
State v. Rust, 388 N.W.2d
483, 492–93 (Neb. 1986)
(fleeing robber shoots a
pursuing civilian four
times, including after he
has fallen).
Purposeful
Convenience store
robber shoots witness in
the head.
Loving v. Hart, 47 M.J.
438, 441 (C.A.A.F. 1998)
(shooting taxi driver in
head when he had no
money).
As should be clear, the “actual killer” category is too broad to account for our
more nuanced intuitions about desert; only by introducing culpability can we
do this.
But beyond these intuitions, a culpability threshold is also compelled by
a combination of the same two principles announced at the outset of this
Article: (1) felony murder liability is justifiable only when the defendant kills
at least negligently with a felonious motive; and (2) the Eighth Amendment
requires that death-sentencing involve a narrowing of the class of murderers
according to a rational selection of the most culpable. Properly defined and
applied, felony murder liability guarantees us a baseline culpability of negligence, but the Eighth Amendment requires that we “genuinely narrow the
class of persons eligible for the death penalty and . . . reasonably justify the
imposition of a more severe sentence on the defendant compared to others
found guilty of murder.”425 Assuming felony murder liability is only justified
for the (at least) negligent causation of death during the commission of a
grave felony, the Eighth Amendment requires culpability greater than negligence for capital punishment of felony murder.
3.
Recklessness Reconciles Precedent and Principle
In light of these arguments, we must demand a threshold higher than
negligence if we aim to satisfy the demands of Zant in a way that accounts for
the underlying justification of felony murder liability. This approach leaves a
number of possibilities. The Model Penal Code recognizes four mental states
higher than negligence: recklessness, recklessness with extreme indifference
(gross recklessness), knowledge, and purpose.426 Among these, the Supreme
425 Zant v. Stephens, 462 U.S. 862, 877 (1983).
426 MODEL PENAL CODE § 2.02 (AM. LAW INST. 1985); MODEL PENAL CODE § 210.2 (AM.
LAW INST. 1980).
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Court has already made the choice for us—if recklessness is sufficient for
execution of a major participant in felony murder (Tison), then it follows
that recklessness is enough for the actual killer (who is certainly a major
participant).
Recklessness is usually defined as “consciously disregard[ing] a substantial and unjustifiable risk,” (here, a risk of death).427 Thus, it goes beyond
mere negligence, which requires only that the actor “should be aware of a
substantial and unjustifiable risk.”428 Negligence blames an actor for unreasonable ignorance of a risk, whereas recklessness requires conscious disregard of that risk. Thus, where the reckless actor adverts to danger and
proceeds in the face of that knowledge, the negligent actor fails to advert to
the danger at all. Precisely because of this, criminal law has traditionally disfavored negligence for serious crimes, and made recklessness the usual baseline level of culpability required to warrant severe criminal punishment.429
When danger is knowingly imposed on others, however, unease at the prospect of punishment drops away. Thus, recklessness is made a default mental
state in the Model Penal Code (to be employed when an offense definition is
silent as to the required mental state corresponding to an objective element).430 Infliction of our most severe penalty is far more acceptable for
harm consciously risked than for harm risked inadvertently.
We stop short of arguing for gross recklessness as a requirement. The
Model Penal Code conditions murder liability on this higher level of culpability, which it defines as recklessness combined with “extreme indifference
to the value of human life.”431 As noted above, examples of this might
include spitefully driving a car into a crowd of guests at a party, or causing a
victim’s death during torture. The Tison Court alluded to this mental state
with the torture example, but then reverted back to regular recklessness
when it promulgated its holding.432 This equivocation between simple recklessness and gross recklessness probably can be explained by two related
drawbacks of requiring gross recklessness in the context of felony murder.
First, because gross recklessness is ambiguous, it is not a very administrable standard to use for constitutional review of the proportionality of
death sentences in different jurisdictions. Gross recklessness has many synonyms: “extreme indifference,” “depraved indifference,” “wanton disregard,”
and even “abandoned and malignant heart.” These various phrases also have
at least three meanings. Recklessness or indifference can be gross, or
extreme, or depraved because of (1) the scale of the known risk (more than
427 MODEL PENAL CODE § 2.02(2)(c) (AM. LAW INST. 1985).
428 Id. § 2.02(2)(d) (emphasis added).
429 Id. § 2.02 cmt. at 229–44. The Model Penal Code accepts negligence as a culpable
mental state, but notes that this should be rare: “[N]egligence, as here defined, should not
be wholly rejected as a ground of culpability that may suffice for purposes of penal law,
though it should not generally be deemed sufficient.” Id. at 243–44.
430 Id. § 2.02(3); KAPLAN, WEISBERG & BINDER, supra note 25, at 224–25.
431 MODEL PENAL CODE § 210.2 (AM. LAW INST. 1980) (murder).
432 Tison v. Arizona, 481 U.S. 137, 157 (1987).
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the substantial and unjustifiable probability required for recklessness, but less
than the certainty required for knowledge); or (2) the number of people
exposed to risk (such as the guests at a lawn party); or (3) the bad motive or
purpose for which the risk is imposed (spite, sadism, coercion). Thus a minimum culpability of gross recklessness might be understood and applied differently by different courts and legislatures, or different Supreme Court
Justices. A requirement of gross recklessness would therefore be ambiguous
unless the Court arbitrarily chose one of these three meanings, to the detriment of jurisdictions that had chosen to define it differently.
Second, one of the meanings of gross recklessness—recklessly imposing
a risk for an evil or antisocial purpose—would normally be satisfied whenever
someone kills recklessly in furtherance of an enumerated felony. Accordingly, by choosing recklessness as the minimum required culpability towards
death for death-eligible felony murder, the Court can impose a clear and
easily administrable requirement that achieves the same effect as requiring
one variant of gross recklessness. Consider the most common predicate felonies for first-degree felony murder: robbery, arson, rape, kidnapping, escape,
and burglary. All of these involve a felonious purpose independent of physical harm to the victim. Robbery aims at theft, arson at destruction of a building, rape at violation of sexual autonomy, kidnapping at violation of personal
liberty, and escape at obstruction of law enforcement. Burglary involves a
trespass to property and usually aims at theft.433 One class of predicate felonies likely to involve claims of unintended and even inadvertent killing is
aggravated child abuse felonies. While these felonies lack the kind of independent felonious purpose that typifies robbery or rape, they often involve
an antisocial purpose, such as sadistic cruelty. Thus, by conditioning capital
punishment of felony murder on recklessness towards death (along with a
felonious purpose), the Supreme Court would be ensuring a finding of one
form of gross recklessness in almost every case.
Imposing a requirement of recklessness and felonious purpose for the
execution of perpetrators would satisfy Eighth Amendment principles by
serving the goals of deterrence and retribution.
While there is little evidence that the death penalty deters, conditioning
execution on reckless rather than inadvertent killing is at least rationally
related to the goal of deterrence. Any potential deterrent effect of a penalty
for murder is undermined where the offender acts without any knowledge of
the risk of causing death. Deterrence theory presupposes that
“[p]unishments are inefficacious when directed against individuals . . . who
have acted without intention, [or] who have done the evil innocently, under
an erroneous supposition.”434 It might be argued that the threat of execu433 Although it can be committed by unlawful entry for the purpose of aggravated
assault, and it has been criticized as a predicate for felony murder under these circumstances. Compare Parker v. State, 731 S.W.2d 756 (Ark. 1987), with People v. Wilson, 462
P.2d 22 (Cal. 1969), overruled by People v. Farley, 210 P.3d 361 (Cal. 2009), and People v.
Farley, 53 Cal. Rptr. 2d 702 (Cal. Ct. App. 1996).
434 BENTHAM, supra note 14, at 322–24.
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tion for inadvertent killing discourages predicate felonies, but for the inadvertent killer, the consequences of causing death cannot influence
decisionmaking. Even for serious crimes like robbery and arson, the chance
of any one commission of the crime producing a death is very small. Probably for that reason, felony murder liability has little proven deterrent
effect.435 Yet for the felony murderer who knowingly imposes a risk of death,
for example by intentionally shooting a resisting victim, the prospect of death
is known, and the penalty for doing so should be salient.
Requiring recklessness also serves retribution by requiring more culpability than is required for simple felony murder liability. One study of popular views of desert found that experimental subjects supported a sentence of
twenty-two to twenty-seven years for negligent killing in the commission of a
robbery.436 These same subjects, though, supported a life term or a death
sentence for intentional murder.437 Another study found that mock jurors
were five times more likely to impose a death penalty for premeditated murder in the context of a robbery than for an inadvertent shooting in the context of a robbery.438 Presuming then that intentional felony murder is much
worse than negligent felony murder, it seems that reckless murder is intermediate between the two. In this sense, it meaningfully narrows felony murder.
While requiring recklessness towards death for capital punishment of
felony murder would serve deterrence and desert and meaningfully narrow
felony murder, it seems that a requirement of intent to kill would advance
these goals even more effectively. By requiring intent to kill for all capital
murders, the Court could ensure that every capital felony murder would be
more culpable than every noncapital intentional murder, because it would
combine intentional killing with the purpose of committing an independent
serious felony. Killings that recklessly endangered multiple victims or endangered the victim for an antisocial purpose would not be death-eligible unless
the victim was also killed intentionally. In this way, capital gross recklessness
murder would always be more culpable than noncapital intentional murder.
Limiting capital punishment to intentional killers would therefore narrow
capital punishment most effectively.
To be sure, in Tison, Justice O’Connor reasoned that some grossly reckless murders—such as the unintended killing of a victim during torture—are
more culpable than some intentional killings.439 She offered examples of
justified, excused, and mitigated intentional killings, but even a premedi435 As for the somewhat fanciful theory that felony murder liability encourages committed felons to commit their crime more carefully, the only empirical study of the deterrent
effect of felony murder rules on killing found none. See Anup Malani, Does the Felony
Murder Rule Deter? Evidence from FBI Crime Data (2002) (unpublished manuscript),
https://www.researchgate.net/publication/265435387_Does_the_Felony-Murder_Rule_
Deter_Evidence_from_FBI_Crime_Data.
436 ROBINSON & DARLEY, supra note 47, at 169–81.
437 Id.
438 See Norman J. Finkel & Kevin B. Duff, Felony-Murder and Community Sentiment: Testing
the Supreme Court’s Assertions, 15 LAW & HUM. BEHAV. 405 (1991).
439 Tison v. Arizona, 481 U.S. 137, 157 (1987).
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tated murder may be diminished in culpability by an altruistic motive of alleviating suffering.440 Nevertheless, even if some grossly reckless murders are
more reprehensible than some intentional murders, intentional murders are
generally more reprehensible than reckless killings. As Justice White reasoned in Enmund, desert is generally thought to require that “causing harm
intentionally must be punished more severely than causing the same harm
unintentionally.”441 Setting the minimum culpability requirement for capital
murder at recklessness runs a greater risk that defendants will be executed
for killings that are not the most culpable. If we are only executing a fraction
of a percent of the perpetrators of homicide, it seems reasonable to exclude
anyone who killed unintentionally.
The countervailing consideration is simply that the Supreme Court has
already decided, in Tison, that reckless killing in furtherance of a predicate
felony suffices for death-eligibility. What the Court did not decide in Tison, is
that “major participants” who kill can be executed without reckless indifference to human life. That question was not before the Court and has not yet
been decided. The many lower courts that have convinced themselves that
the Court has authorized the execution of inadvertent killers are mistaken.
In sum, Eighth Amendment principle demands that a culpability threshold be imposed above that of negligence. Recklessness and intent both satisfy the demands of principle, but recklessness best reconciles principle with
precedent. It is the solution available to lower courts now, it is the solution
more easily supported as an evolving standard of decency, and it is the solution that the Court can adopt without disturbing precedent.
CONCLUSION
We have shown that under the prevailing interpretation of the Eighth
Amendment in the lower courts, a defendant who participates in a felony and
causes the death of a victim is eligible for the death penalty—even when the
defendant acted without any culpable mental state with respect to the victim’s death. This “mechanical reading” of Enmund and Tison is mistaken, as
the underlying justifications of the Eighth Amendment require a rational
selection of the most deserving offenders, and this in turn requires an assessment of culpability. The Supreme Court should address this open question
in Eighth Amendment law by imposing a uniform requirement of at least
recklessness with respect to death.
440 See KAPLAN, WEISBERG & BINDER, supra note 25, at 339; 71-Year-Old Woman Gets Probation in the Mercy Killing of Her Husband, GAINESVILLE SUN, June 20, 1984, at 1B (covering the
Dorothy Healy case).
441 Enmund v. Florida, 458 U.S. 782, 798 (1982) (quoting HART, 1st ed., supra note 68,
at 162).
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